P. v. Miron

Filed 8/4/20 P. v. Miron CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ARON MIRON,
Defendant and Appellant.
B298821
(Los Angeles County
Super. Ct. No. GA037024)
APPEAL from an order of the Superior Court of
Los Angeles County, Suzette Clover, Judge. Affirmed.
Thomas Owen, 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, Assistant
Attorney General, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.

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Appellant Aron Miron was convicted of three counts of
second degree murder and other crimes in connection with a
drunken driving incident and was sentenced to three consecutive
terms of 15 years to life. Appellant filed a petition for
resentencing under Penal Code section 1170.95.1 After reviewing
appellant’s record of conviction, the trial court found that he was
not eligible for relief and summarily denied his petition without
appointing counsel. Appellant challenges the summary denial of
his petition and the trial court’s failure to appoint counsel. We
find no error and affirm.
BACKGROUND
I. Convictions
An amended information filed on February 8, 2000 charged
appellant with three counts of murder (§ 187, subd. (a)), three
counts of gross vehicular manslaughter while intoxicated
(§ 191.5, subd. (a)), and one count of driving under the influence
(DUI) and causing injury (Veh. Code, § 23153, subd. (a)). The
amended information further alleged, as to the manslaughter and
DUI counts, that appellant suffered two prior convictions for DUI
(Veh. Code, § 23152, subd. (a)). Appellant pled not guilty and
proceeded to jury trial.
We summarized the facts adduced at appellant’s trial in
our opinion resolving his direct appeal, People v. Miron (Oct. 24,
2001, B142913) [nonpub. opn.]). Both appellant and respondent
incorporate portions of that opinion into their briefs, and we take
judicial notice of it.
1All further statutory references are to the Penal Code
unless otherwise indicated.

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As we summarized in our previous opinion, appellant
attended a wedding reception on Tujunga Canyon Road on
August 22, 1998. Appellant arrived in his car at approximately
7:30 p.m., with his girlfriend, Maria Martinez, and two others,
Felix Alvarez and Maria Galindo Alvarez. Several wedding
guests testified about appellant’s apparent intoxication. One
stated that he placed six beers on appellant’s table when
appellant arrived, even though appellant smelled of alcohol and
was swaying when he and the others arrived. Another testified
that she saw beer cans all over appellant’s table at approximately
8:30 p.m. A third testified that she saw appellant and three
other people walking down a dirt hill toward the parking lot at
9:00 p.m. Appellant was swaying and having difficultly standing;
he appeared to be drunk.
At 10:30 p.m., Jesus Sandoval and three others were
driving back from a mountain retreat when they saw appellant
standing on the side of the road. Appellant was bloody and
appeared to be injured. Sandoval stopped the car and appellant
got in; he smelled of beer and appeared to be intoxicated.
Appellant told Sandoval that he had been drinking in a park with
his girlfriend when he was attacked. The attacker drove away in
appellant’s car with appellant’s girlfriend. Appellant repeatedly
asked Sandoval not to call the police. Sandoval dropped
appellant off at a restaurant, from which appellant called his
girlfriend’s daughter, Veronica Meza. When Meza arrived at the
restaurant, appellant smelled of alcohol and appeared to be
extremely intoxicated. He responded only “yes” when Meza
repeatedly asked him where her mother was.
Los Angeles Police Department officer Arno Clair arrived at
the restaurant and observed that appellant had facial injuries

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and appeared intoxicated. Appellant told Clair that he had been
attacked by two men near the intersection of Sunburst and
Foothill Boulevard.
Appellant was transported to the hospital, where he told
California Highway Patrol officer Manuel Rodriguez that he had
been carjacked. He subsequently admitted that he had been
involved in a car accident, but did not admit until later that he
had been the driver. Appellant claimed he had a flat tire and
denied consuming any alcohol. Later, he admitted to consuming
four beers before driving.
Appellant’s car was subsequently found in a drainage
culvert off Little Tujunga Road. Martinez, Alvarez, and Galindo
Alvarez were with the car. They had all been killed.
An accident reconstruction expert from the California
Highway Patrol opined that appellant’s car had been traveling at
least 37 miles per hour when it went off the road. There were no
skid marks. The expert opined that the driver of the car had
been going too fast and made an unsafe turning movement.
Appellant presented no evidence in his defense.
As relevant here, the court instructed the jury with
CALJIC instructions defining homicide (CALJIC No. 8.00),
murder (CALJIC No. 8.10), malice aforethought (CALJIC No.
8.11), second degree murder (CALJIC No. 8.31), and homicide—
cause (CALJIC No. 8.55). The court further instructed “as a
matter of law that if you find any of [the] counts to be murders
they are in the second degree.” (Modified CALJIC No. 8.70.) The
court did not give any instructions on felony murder, aiding and
abetting, or the natural and probable consequences doctrine.
The jury found appellant guilty on all seven counts.
Appellant later admitted his priors. The trial court sentenced

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appellant to a term of 15 years to life on each of the murders, to
run consecutively. The trial court imposed and stayed sentences
of 15 years to life on each of the manslaughter counts, and
imposed and stayed the high term of four years on the DUI count.
II. Direct Appeal
On direct appeal, we rejected appellant’s contention that
there was insufficient evidence of implied malice to support his
second degree murder convictions. We also rejected his
contention that the court erred in instructing the jury with
CALJIC No. 17.41.1 regarding juror misconduct. We agreed with
appellant and the Attorney General, however, that appellant
should not have been convicted both of gross vehicular homicide
while intoxicated and the lesser included offense of driving under
the influence causing injury. We accordingly reversed his
conviction on the DUI count but otherwise affirmed.
III. Section 1170.95 Petition
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (SB 1437), which “amend[ed] the felony
murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1(f).) In addition to other
amendments discussed more fully below, SB 1437 added section
1170.95, which establishes a procedure by which individuals
convicted of murder under a felony murder theory or the natural
and probable consequences doctrine can seek vacation of those
convictions and resentencing. (Stats. 2018, ch. 1015, § 4, pp.
6675-6677; see also People v. Lewis (2020) 43 Cal.App.5th 1128,

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1134, review granted March 18, 2020, No. S260598 (Lewis).)2
The provisions of SB 1437 became effective on January 1, 2019.
On February 19, 2019, appellant, in propria persona, filed a
form petition for resentencing under section 1170.95. The form
petition has several boxes the petitioner may (or must) check.
Appellant checked boxes indicating that his murder conviction
was based upon the felony murder rule or the natural and
probable consequences doctrine, he could not now be convicted of
murder due to changes made to sections 188 and 189, and
requesting that counsel be appointed for him “during this re-
sentencing process.” Appellant attached to his petition as
exhibits a reporter’s transcript of his June 8, 2000 sentencing
hearing and a “Legal Status Summary” documenting his parole
eligibility date and his receipt and loss of custody credit while
incarcerated. The petition was received at the appropriate
courthouse on April 16, 2019.
2The Supreme Court granted review in Lewis to consider
two issues: “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code section
1170.95? (2) When does the right to appointed counsel arise
under Penal Code section 1170.95, subdivision (c).” (Lewis,
supra, S260598) [2020 WL 1291847].) The Supreme Court also
granted review in People v. Cornelius (2020) 44 Cal.App.5th 54,
review granted March 18, 2020, No. S260410 (Cornelius) and
People v. Verdugo (2020) 44 Cal.App.5th 320, review granted
March 18, 2020, No. S260493 (Verdugo). The Court deferred
briefing in Cornelius and Verdugo pending its consideration and
disposition of Lewis or further order. (Cornelius, supra, S260410;
Verdugo, supra, S260493.)

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The trial court issued an order summarily denying
appellant’s petition on April 29, 2019. The court explained: “The
record in this case has been reviewed by the Court. Petitioner
does not appear to be eligible for relief under this new law. Penal
Code section 1170.95 applies only where a murder conviction was
predicated on vicarious liability pursuant to the felony murder
rule or natural and probable consequences doctrine. Petitioner
was convicted of three counts of second-degree implied malice
murder. The Court of Appeal found ample circumstantial
evidence to support the jury’s verdicts, noting that Petitioner was
driving recklessly while intoxicated with knowledge that driving
after drinking was life threatening. The jury was instructed on
an implied malice theory of murder only. [¶] Pursuant to Penal
Code section 1170.95(b)(2), Petitioner has not demonstrated
eligibility for relief. Therefore, the petition is denied without
prejudice. Petitioner may file a new petition demonstrating
eligibility for relief if he can establish his case falls within the
scope of the new law.” The trial court did not hold a hearing or
appoint counsel.
Appellant timely appealed.
DISCUSSION
I. Legal Principles
The primary purpose of SB 1437 is to align a person’s
culpability for murder with his or her own actions and subjective
mens rea. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To
effectuate that purpose, SB 1437 amended sections 188 and 189.
As amended, section 188, subdivision (a)(3) now provides that “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.”

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(§ 188, subd. (a)(3).) Section 189 now provides that a participant
in qualifying felonies during which a death occurs generally will
not be liable for murder unless that person was (1) “the actual
killer,” (2) a direct aider and abettor in first degree murder, or (3)
“a major participant in the underlying felony [who] acted with
reckless indifference to human life.” (§ 189, subd. (e).)3
SB 1437 also added section 1170.95. Section 1170.95
permits a person convicted of murder on a charging document
that allowed the prosecution to argue felony murder or the
natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and resentence on any
remaining counts if the person could not be convicted of murder
under sections 188 and 189 as amended by SB 1437. (§ 1170.95,
subd. (a).) A petition for relief under section 1170.95 must
include: “(A) A declaration by the petitioner that he or she is
eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case
number and year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).) If any of this information is missing “and cannot be
readily ascertained by the court,” the court may deny the petition
without prejudice. (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, section
1170.95, subdivision (c) prescribes “a two-step process” for the
court to determine if it should issue an order to show cause.
3This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (§ 189, subd. (f).)

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(Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must
“review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section.” (§ 1170.95, subd. (c).) If the petitioner has made
this initial prima facie showing, he or she is entitled to appointed
counsel, if requested. (Ibid.; Verdugo, supra, at p. 328; Lewis,
supra, 43 Cal.App.5th at p. 1140.) The prosecutor must file a
response, and the petitioner may file a reply. (§ 1170.95, subd.
(c).) The court then reviews the petition a second time. If, in light
of the parties’ briefing, it concludes the petitioner has made a
prima facie showing that he or she is entitled to relief, it must
issue an order to show cause. (Ibid.; Verdugo, at p. 328; Lewis, at
p. 1140.)
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts.” (Verdugo, supra, 44 Cal.App.5th at 327,
citing § 1170.95, subd. (d)(1).) At the hearing, the parties may
rely on the record of conviction or present “new or additional
evidence” to support their positions. (§ 1170.95, subd. (d)(3).)
We independently review whether the trial court properly
interpreted and fulfilled its duty under the statute. (See Greene
v. Marin County Flood Control & Water Conservation Dist. (2010)
49 Cal.4th 277, 287 [questions of law are reviewed de novo]; cf.
Verdugo, supra, 44 Cal.App.5th at p. 328, fn. 8 [appellate court’s
principal task in interpreting a statute is to determine
Legislative intent and give effect to the law’s purpose].)
II. Analysis
Appellant contends that “summary denial of his petition
was error and he was entitled to appointment of counsel” because

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his petition asserted under penalty of perjury that the required
conditions of section 1170.95 were met. He further contends that
the trial court acted inconsistently with section 1170.95 by failing
to use the term “prima facie case” and “going behind appellant’s
allegations to consider whether and how in further litigation they
might be contradicted.”
Every Court of Appeal to have considered the issue has
held that in determining whether a petitioner has made a prima
facie case for relief under section 1170.95, a trial court may look
to documents that are part of the record of conviction or are
otherwise in the court file. (See Verdugo, supra, 44 Cal.App.5th
at 329 [documents in court file or record of conviction should be
available to trial court in connection with first prima facie
determination under subd. (c)]; Lewis, supra, 43 Cal.App.5th at
1138 [trial court may summarily deny petition without briefing or
appointment of counsel if court file shows petitioner was
convicted of murder without instruction or argument based on
felony-murder rule or natural and probable consequences
doctrine]; Cornelius, supra, 44 Cal.App.5th at pp. 57-58
[affirming summary denial of petition based on verdict, trial
transcript, and prior appeal].) We agree with the analyses of our
sister courts and reject appellant’s contention that these cases
were wrongly decided.
In Verdugo, the Court of Appeal observed that section
1170.95, subdivision (b)(2) allows a court to consider readily
ascertainable documents that are in the court file or otherwise
part of the record of conviction to ensure the petition meets the
requirements of subdivision (b)(1). (Verdugo, supra, 44
Cal.App.5th at p. 329.) It reasoned that those same documents
“should similarly be available to the court in connection with the

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first prima facie determination required by subdivision (c).”
(Ibid.) We agree. A trial court evaluating whether a petitioner
has made a prima facie showing in a section 1170.95 petition is
not required to accept those allegations at face value and may
also examine the record of conviction. (Lewis, supra, 43
Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at pp.
329-330.) However, the contents of the record of conviction defeat
a prima facie showing only when the record “show[s] as a matter
of law that the petitioner is not eligible for relief.” (Lewis, at p.
1138; Verdugo, at p. 330; see also Cornelius, supra, 44
Cal.App.5th at p. 58.) This is true regardless of whether the trial
court uses the term “prima facie case” in its analysis.
The record of conviction in this case demonstrates that
appellant is not eligible for relief as a matter of law. The jury
found that he, the sole principal in the crime, acted with malice
aforethought. We previously affirmed that sufficient evidence
supported that finding of implied malice. Moreover, it is clear
that appellant was not convicted under a felony murder or
natural and probable consequences theory. The jury was not
instructed with those theories. Instead, it was instructed
exclusively on implied malice, which remains a valid basis on
which a murder conviction may be predicated.
Appellant argues that he was deprived of his opportunity to
present “new or additional evidence” under section 1170.95,
subdivision (d)(3). He asserts that “[n]either this Court nor the
trial court can categorically state at this point, beyond a
reasonable doubt, that any such evidence will not entitle
appellant to resentencing.” Lewis, supra, 43 Cal.App.5th at p.
1139 rejected an identical argument. Even if we assume, without
deciding, that section 1170.95 permits a petitioner to present

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evidence from outside the record to contradict a fact established
by the record of conviction, the evidence appellant included with
his petition did no such thing. Moreover, whatever evidence
counsel might present regarding the applicability of the felony
murder rule or the natural and probable consequences theory,
appellant would stand convicted as a principal who acted with
malice aforethought. This excludes him from the statute.
Appellant finally contends that the trial court’s “failure to
appoint counsel for appellant is a separate but related error that
requires reversal,” because “[d]enial of even a statutory right to
counsel is structural error that is not amenable to harmless-error
analysis.” The case he relies on in support of this proposition,
People v. Fryhaat (2019) 35 Cal.App.5th 969 (Fryhaat), does not
support his position. Fryhaat concluded structural error occurred
because the defendant did not receive a hearing to which all
movants were entitled under the statute at issue, section 1473.7.
(See Fryhaat, supra, 35 Cal.App.5th at p. 978.) Furthermore,
Fryhaat interpreted section 1473.7 to “provide the right to
appointed counsel where an indigent moving party has set forth
factual allegations stating a prima facie case for entitlement to
relief under the statute.” (Fryhaat, supra, 35 Cal.App.5th at p.
981.) That is the same standard that applies here, and appellant
did not meet it.
DISPOSITION
The order of the trial court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:

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MANELLA, P. J. CURREY, J.

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