People v. Miller CA2/5

Filed 12/1/20 P. v. Miller CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B297558

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA226937) v.

TYRONE MILLER et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Reversed and remanded. Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Tyrone Miller. Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant And Appellant Derrick Patton. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorney General, Amanda V. Lopez and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

2

A jury convicted defendants and appellants Derrick Patton (defendant Patton) and Tyrone Miller (defendant Miller) of first degree felony murder. Following enactment of Senate Bill No. 1437 (Senate Bill 1437), defendants separately filed uncounseled petitions for resentencing pursuant to Penal Code section 1170.95.1 The trial court denied their petitions without first appointing counsel, and we consider whether either defendant is eligible to have his murder conviction vacated in light of the changes worked by Senate Bill 1437.

I. BACKGROUND Defendants and Melvin Tate (Tate) were members of the 4- Deuce Crips street gang and they had participated in a number of “follow-home” robberies as part of the gang’s activities. (In re Miller (2017) 14 Cal.App.5th 960, 964.) These robberies were conducted in a similar fashion: a “spotter” would go into a bank, locate a person withdrawing a large amount of cash, and identify that person for the others involved in committing the robbery; the “driver” would tail the victim to his or her destination; and the “getter” would take the money. (Ibid.) In May 2000, defendants met Tate at his residence and planned a follow-home robbery that led to the murder convictions at issue in this appeal; defendant Miller would serve as the spotter, defendant Patton the driver, and Tate the getter. (In re Miller, supra, 14 Cal.App.5th at 965.) When they later put their plan into practice, defendant Miller spotted Ana Saravia (Saravia) withdrawing $7,500 at a bank while accompanied by