People v. Milberger CA2/5

California Court of Appeal Oct 28, 2021 No. B305968Unpublished

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Holding. The trial court erred by summarily denying a Penal Code section 1170.95 petition without appointing counsel, as required by People v. Lewis, and the error was not harmless because appointed counsel could potentially present new evidence or arguments.

Issues

Whether a trial court must appoint counsel for a Penal Code section 1170.95 petitioner upon the filing of a facially sufficient petition.
Whether the summary denial of a section 1170.95 petition without the appointment of counsel constitutes harmless error when the record of conviction suggests potential eligibility for relief.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“a trial court must appoint counsel for a section 1170.95 petitioner upon the mere filing of a facially sufficient petition.”

“We decline to affirm on harmlessness grounds.”

“The order denying defendant's section 1170.95 petition is reversed and the matter is remanded with directions to appoint counsel for defendant”

Filed 10/28/21 P. v. Milberger CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

People v. Milberger CA2/5

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B305968

BERNARD MILBERGER, JR.,

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOOR, J.

KIM, J.

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