People v. Miller CA2/5

Filed 4/14/23 P. v. Miller CA2/5 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. v. BA226937)

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 and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan

Pithey, Senior Assistant Attorney General, Noah P. Hill, Senior Deputy Attorney General, Amanda V. Lopez and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

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 1172.6 (former Penal Code section 1170.95).1 The trial court denied their petitions without first appointing counsel. On appeal from that denial order, we issued an opinion in December 2020 concluding the trial court erred in denying both petitions. As to defendant Miller, we concluded (as the Attorney General conceded) that he was entitled to section 1172.6 relief based on this court’s prior holding that he was not a major participant who acted with reckless indifference to human life within the meaning of People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). Pursuant to the parties’ stipulation, we issued our remittitur as to defendant Miller just 13 days after our decision. As to defendant Patton, we held the trial court erred in denying his section 1172.6 petition without first appointing counsel and receiving the submissions contemplated by the statute. The Attorney General petitioned for review by our Supreme Court—but only as to defendant Patton. The Supreme Court