People v. Miller CA3

Filed 3/23/22 P. v. Miller CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C093756

Plaintiff and Respondent, (Super. Ct. No. 11F01280)

v.

DARRELL MILLER,

Defendant and Appellant.

In June 2012, a jury found defendant Darrell Miller guilty of second degree murder. (Pen. Code, § 187.)1 The jury found true a second degree drive-by murder allegation (§ 190, subd. (d)) and a firearm use allegation (§ 12022, subd. (a)(1)). The trial court sentenced defendant to a term of 21 years to life in state prison. In 2013, we

1 Undesignated statutory references are to the Penal Code.

1

affirmed defendant’s conviction in an unpublished opinion. (People v. Miller (Dec. 2, 2013, C071700).) In 2019, defendant, through counsel, filed a petition for resentencing under newly enacted section 1170.95. The People filed a response and moved to dismiss the petition. The court ordered additional briefing, defendant filed a reply, and after reviewing the record of conviction, the trial court denied defendant’s petition. Defendant timely appealed and now contends the trial court erred in determining defendant failed to state a prima facie case. The People concede the issue and agree the matter should be remanded for further proceedings. We accept the People’s concession. PROCEDURAL BACKGROUND On March 25, 2019, defendant, through counsel, filed a petition for resentencing pursuant to section 1170.95. The People filed a response and moved the court to dismiss the petition. The trial court then requested the parties submit additional briefing on the issue, specifically the impact of this court’s opinion affirming the underlying judgment. The court noted that, relevant to second degree murder, defendant’s jury was instructed on two theories of liability: (1) direct aiding and abetting, and (2) the natural and probable consequences doctrine. The trial court found, however, that this court’s opinion affirmed defendant’s conviction for second degree murder by concluding there was sufficient evidence to convict him as a direct aider and abettor. Our opinion did not analyze any other theory of liability. Thus, the trial court wondered, was defendant precluded from relief under section 1170.95 as a matter of law, based on this court’s decision. Neither party responded to the court’s inquiry. On March 2, 2021, the trial court denied defendant’s petition without issuing an order to show cause, finding him ineligible for relief as a matter of law. In reaching its decision, the trial court noted “the Third District specifically held . . . that ‘the jury could infer that defendant aided and abetted the murder by holding the gun before the shooting,