Filed 8/26/20 P. v. Miller CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,                                                     B297084

         Plaintiff and Respondent,                              (Los Angeles County
                                                                Super. Ct. No. NA049632)
         v.

SANTAWN MILLER,

         Defendant and Appellant.




     APPEAL from an order of the Superior Court of
Los Angeles County. Judith Levey Meyer, Judge. Affirmed.

     Cynthia L. Barnes, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Daniel C. Chang
and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and
Respondent.
       Defendant and appellant Santawn Atuanya Miller
(defendant) appeals from the summary denial of his petition for
writ of habeas corpus. He contends that the trial court erred in
deeming the petition to be a petition for resentencing pursuant to
Penal Code section 1170.95.1 Defendant also contends that the
trial court erred in ruling, that section 1170.95 is
unconstitutional. As we find no merit to defendant’s first
contention, we affirm the court’s order summarily denying the
petition without reaching the trial court’s second ground for its
order.2
                          BACKGROUND
Senate Bill No. 1437
       Senate Bill No. 1437 (S.B. 1437) amended sections 188 and
189, effective January 1, 2019. As amended, section 188 limits a
finding of malice as follows: “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).) Subdivision (e) of section 189 now
reads: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death
occurs is liable for murder only if one of the following is proven:



1     All further statutory references are to the Penal Code,
unless otherwise indicated.

2     “Courts generally avoid reach constitutional questions
unless absolutely required to do so to dispose of the issues before
them. [Citations.]” (People v. Hopson (2017) 3 Cal.5th 424, 466.)




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            “(1) The person was the actual killer.

             “(2) The person was not the actual killer, but,
      with the intent to kill, aided, abetted, counseled,
      commanded, induced, solicited, requested, or assisted
      the actual killer in the commission of murder in the
      first degree.

             “(3) The person was a major participant in the
      underlying felony and acted with reckless
      indifference to human life, as described in subdivision
      (d) of Section 190.2.”

      S.B. 1437 also added section 1170.95 to provide a procedure
by which those convicted of murder can seek retroactive relief if
the changes in sections 188 or 189 would affect their previously
affirmed convictions. (People v. Martinez (2019) 31 Cal.App.5th
719, 722.) Section 1170.95, subdivision (a) permits anyone
convicted of felony murder or murder under a natural and
probable consequences theory to file a petition with the
sentencing court to have the petitioner’s murder conviction
vacated and to be resentenced on any remaining counts when
certain conditions exist. Specifically, that the charging document
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; that the petitioner was convicted of murder; and that
the petitioner could not now be convicted of murder due to
changes to sections 188 or 189, effective January 1, 2019.
      The petition must allege all three conditions and include
the petitioner’s declaration that he is eligible for relief, as well as
the year of conviction and the superior court case number under
which he was convicted, and any request for the appointment of




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counsel. (§ 1170.95, subd. (b)(1)(A)-C).) If any of the required
information is missing from the petition and cannot be readily
ascertained by the court, the court may deny the petition without
prejudice to the filing of another petition and so advise the
petitioner. (§ 1170.95, subd. (b)(2).) Section 1170.95, subdivision
(c) requires the court to “review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section.”
       Here, the trial court reviewed the petition and determined
that defendant did not fall within the provisions of the statute.
The matter thus ended at this stage.
Defendant’s petition for habeas corpus
       In 2002, defendant was convicted one count of first degree
murder and three counts of attempted murder, which this court
affirmed on appeal. (See People v. Miller (Aug. 10, 2004,
B165190) [nonpub. opn.] (Miller I).)3
       In February 2019, defendant submitted a petition for writ
of habeas corpus in the superior court, seeking resentencing
under section 1170.95. In addition to the three statutory
conditions, the petition alleged that although defendant was
convicted of murder in the first degree, he was eligible for
resentencing because “he did not act with reckless indifference to
human life, was not a major participant in the crime, did not
intend to kill, was not the actual killer, did not assist the actual
killer in the commission of the murder, [and] did not counsel,



3      We have granted respondent’s motion for judicial notice of
the appellate opinion in Miller I as well as the clerk’s transcript
filed in that appeal.




                                 4
command, induce, solicit[], [or] request[] the murder.”4 The
petition further alleged that the actual killer/shooter was Wallace
Vaughn, who told a detective that at no point before the shooting
or after the shooting was anyone told about what he (Vaughn)
was going to do. Vaughn claimed that defendant never knew
what was going on. For some reason the statements were not
allowed in open court and thus not considered by the jury. (See
Miller I, supra, B165190 at pp. 7-8.) The petition requested an
order to show cause and the appointment of counsel.5
On March 8, 2019, the trial court summarily denied relief based
upon the court file and the appellate opinion in defendant’s case.
The trial court found defendant ineligible for relief under S.B.
1437 because, although defendant was not the actual killer, he
was not convicted of felony murder or on a theory of natural and
probable consequences, but rather, as a direct aider and abettor
in all counts, with his own intent to kill. The trial court also
found S.B. 1437 to be unconstitutional.
       On March 29, 2019, defendant filed a petition for
resentencing under section 1170.95 on a pre-printed form, with
his declaration attached. He stated that he had previously filed a
petition for writ of habeas corpus, and learned on March 21,
2019, that he was required to file “this actual SB 1437 petition
pursuant to Pen. Code § 1170.95 (a)(b)(A)-(C).” On April 8, 2019,

4     Defendant attached a copy of the appellate opinion
affirming his conviction in Miller I.

5     As a second ground for habeas corpus, defendant alleged
that his waiver of a jury trial as to his prior convictions was not
voluntary and intelligent under the totality of the circumstances.
The trial court did not expressly rule on this ground, and
defendant does not raise the issue on appeal.




                                 5
the trial court denied this petition on the ground that it had ruled
on and denied the prior petition on March 8, 2019.
       Defendant filed a timely notice of appeal only from the trial
court’s ruling of March 8, 2019.
                            DISCUSSION
       Defendant does not contend that the court file or appellate
opinion did not show that he was not convicted under the felony-
murder rule or the natural and probable consequences doctrine,
instead he complains of the procedure followed by the court.
Defendant contends that “the trial court erred when it treated a
writ of habeas corpus as a petition under section 1170.95,
summarily denied that petition on March 8, 2019 and
subsequently, rejected the March 29, 2019 petition for
resentencing because of the summary denial on March 8, 2019.”
Defendant asserts that the March 8 ruling must therefore be
reversed, and the matter remanded to allow defendant to proceed
on the section 1170.95 petition filed on March 29 or to refile a
section 1170.95 petition.
       We find nothing in section 1170.95 which requires a
petition for relief under that section to be on a particular form or
in a particular format. Defendant cites no authority for the
assertion implied in his argument that the trial court may not
treat a petition labeled as one for habeas corpus as another type
of petition even when the allegations demonstrate that it is
procedurally appropriate to do so. Contrary to defendant’s
suggestion, “‘[t]he label given a petition, action or other pleading
is not determinative; rather, the true nature of a petition or cause
of action is based on the facts alleged and remedy sought in that
pleading.’ [Citation.]” (People v. Picklesimer (2010) 48 Cal.4th
330, 340.) Defendant’s habeas petition contained the allegations




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required by section 1170.95, and it requested the relief provided
by that section. The trial court thus did not err in treating the
habeas petition as one for relief under section 1170.95.
       Defendant also argues that section 1170.95 provides for
summary denial only as stated in subdivision (b)(2) of the statute
and only without prejudice, when information necessary to make
a ruling is missing from the petition and cannot be readily
ascertained by the court. In essence, defendant contends that
even when the trial court apparently has all the information
needed to find the petitioner ineligible as a matter of law, it may
not do so, and that so long as the petition makes the necessary
allegations, the court must find that the petitioner has made a
prima facie showing that he is entitled to relief under section
1170.95.
       We disagree. The first sentence of section 1170.95,
subdivision (c) obligates the trial court to “review the petition and
determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section.” (Italics
added.) The statute does not state that the trial court must
review only the petition to determine whether petitioner falls
within the provisions of the statute. Indeed, subdivision (b)(2) of
section 1170.95 allows the court to review necessary information
which can be “readily ascertained” if necessary. (Italics added.)
It stands to reason that the information most readily
ascertainable by the trial court would be in the record of
conviction.
       Defendant does not take issue with the court’s review of the
appellate opinion in Miller I, but argues that the trial court erred
in relying on the statement of facts in the opinion to determine
the circumstances of the crimes. First he reasons that trial




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evidence in an appellate opinion is summarized in the light most
favorable to the judgment. Defendant made no such claim in his
appeal. The only claimed errors in the appeal were the exclusion
of the accomplice statement which defendant claimed was
exonerating, and the denial of a motion for mistrial due to the
exclusion of the statement. (See Miller I, supra, B165190.)
       Second, defendant claims that the court was not permitted
to take judicial notice of the truth of the facts in the appellate
opinion. None of the authorities cited by defendant support this
contention.6 Indeed, none involved judicial notice of an opinion
issued in a defendant’s appeal and reviewed in order to
determine a sentencing issue. Contrary to defendant’s claim,
“appellate opinions, in general, are part of the record of
conviction that the trier of fact may consider in determining
whether a conviction qualifies under the sentencing scheme at
issue.” (People v. Woodell (1998) 17 Cal.4th 448, 457.) “If the
appellate court did state the pertinent facts, a trier of fact is
entitled to find that those statements accurately reflect the trial
record.” (Ibid.)
       Nevertheless, the trial court did not state that it was
relying solely on the opinion. The memorandum of decision
indicated that the trial court also reviewed the court file. Several

6      See, e.g., Gilmore v. Superior Court (1991) 230 Cal.App.3d
416 [facts for summary judgment in wrongful death action taken
from appellate opinion]; People v. Tolbert (1986) 176 Cal.App.3d
685 [order sustaining demurrer to information based on
magistrate’s factual finding at preliminary hearing]; People v.
Long (1970) 7 Cal.App.3d 586 [use of juvenile court file to sustain
new charges]; Love v. Wolf (1964) 226 Cal.App.2d 378 [transcript
of United States Senate committee hearing to prove product
liability].




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appellate courts have recently concluded that an initial
determination of whether a petitioner’s conviction falls within the
statutory provisions should be based upon the record of
conviction, in addition to the allegations of the petition. (See
People v. Lewis (2020) 43 Cal.App.5th 1128, 1137-1138 (Lewis),
review granted Mar. 18, 2020, S260598; accord, People v. Verdugo
(2020) 44 Cal.App.5th 320, 333 (Verdugo), review granted Mar.
18, 2020, S260493.) One court noted that such an initial
determination of the petitioner’s “statutory eligibility for
resentencing [is] a concept that is a well-established part of the
[analogous] resentencing process under Propositions 36 and 47.
[Citations.]” (Verdugo, supra, at p. 329, citing People v. Page
(2017) 3 Cal.5th 1175, 1188-1189 [Proposition 47]; Teal v.
Superior Court (2014) 60 Cal.4th 595, 600 [Proposition 36]; see
also Lewis, supra, at p. 1138, citing People v. Bradford (2014) 227
Cal.App.4th 1322, 1341.) The record of conviction includes not
only the appellate opinion, but also such documents as the
complaint, information or indictment filed against the petitioner,
the verdict form, and the abstract of judgment. (Verdugo, supra,
at pp. 329-331.)
       We have reviewed the appellate opinion and the clerk’s
transcript in the record on appeal filed in Miller I. Defendant
was charged by amended information with one count of murder
(§ 187, subd. (a)) and three counts of attempted murder
(§§ 664/187), with the special allegations that the attempted
murders were willful, deliberate, and premeditated (§ 664, subd.
(a)), and as to all counts that a principal personally used a
firearm (§ 12022, subd. (a)(1)). In 2002, following a jury trial,
defendant was convicted of all four counts, and the jury found the




                                9
murder to be in the first degree and found true the special
allegations.
       Vacatur and resentencing is available only to those
convicted of felony murder or murder under the natural and
probable consequences doctrine. Felony-murder liability is
imposed upon a person who, harboring no intent to kill or even
implied malice, aids and abets an accomplice in the commission
of an inherently dangerous felony, and the accomplice kills in the
commission of the intended crime. (People v. Bryant (2013) 56
Cal.4th 959, 965.) Under the natural and probable consequences
doctrine, a “‘person who knowingly aids and abets criminal
conduct is guilty of not only the intended [target] crime . . . but
also of any other crime the perpetrator actually commits . . . that
is a natural and probable consequence of the intended crime.’”
(People v. Medina (2009) 46 Cal.4th 913, 920.)
       We have reviewed the jury instructions contained in the
clerk’s transcript. There was no instruction given regarding
felony murder or the natural and probable consequences doctrine.
Although the trial court read CALJIC No. 8.11, which defines
malice and instructs that malice may be express or implied, the
court omitted the definition of implied malice as well as the
optional explanation of the natural and probable consequences
doctrine. Among the instructions read by the trial court was
CALJIC No. 8.66, which instructs that the person committing the
act must harbor an intent to kill. The trial court also read
CALJIC No. 3.01, which defines direct aiding and abetting, and
instructs that “A person aids and abets the commission or
attempted commission of a crime when he or she, [¶] 1. With
knowledge of the unlawful purpose of the perpetrator and [¶] 2.
With the intent or purpose of committing or encouraging or




                                10
facilitating the commission of the crime, and [¶] 3. By act or
advice aids, promotes, encourages or instigates the commission of
the crime.”
       We are satisfied that the record of conviction contained all
the necessary information for the trial court to make the initial
determination whether defendant fell within the provisions of the
statute and whether he had made a prima facie showing of
entitlement to relief, as required by section 1170.95, subdivision
(c). As all such information was readily ascertained, the court
was not required to deny the petition without prejudice. (See
§ 1170.95, subd. (b)(2).)
       As the record of conviction shows that the prosecution did
not proceed on a theory of felony murder, and defendant was not
convicted of felony murder or murder under the natural and
probable consequences doctrine, section 1170.95 relief is
unavailable to him. (See § 1170.95, subd. (a).) As defendant does
not fall within the provisions of the statute, he is ineligible for
relief as a matter of law. (See § 1170.95, subd. (c); Verdugo,
supra, 44 Cal.App.5th at p. 329.) The trial court thus did not err
in summarily denying defendant’s petition. (See Verdugo, at pp.
328-330; Lewis, supra, 43 Cal.App.5th at pp. 1137-1138; People v.
Cornelius (2020) 44 Cal.App.5th 54, 57-58, review granted Mar.
18, 2020, S260410.) Nor did the trial court err in doing so
without appointing counsel. (Lewis, at p. 1140.)




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                         DISPOSITION
      The order of March 8, 2020, treating defendant’s petition
for habeas corpus as one for relief under section 1170.95, and
summarily denying the petition, is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                             ____________________________, J.
                             CHAVEZ

We concur:


__________________________, P. J.
LUI


__________________________, J.
HOFFSTADT




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