P. v. Miller

Filed 1/28/20 P. v. Miller CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM BOYD MILLER III,
Defendant and Appellant.
2d Crim. No. B295952
(Super. Ct. No. VA097054)
(Los Angeles County)
William Boyd Miller III appeals an order denying his Penal
Code section 1170.95 petition for resentencing of his prior second
degree murder conviction.1 (§§ 187, subd. (a), 189.) He claims he
is entitled to relief following the recent passage of Senate Bill No.
1437. We conclude, among other things, that Miller did not make
the required prima facie showing for relief because the record
shows he was the actual killer. We affirm.
1 All statutory references are to the Penal Code.

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FACTS
Miller beat his elderly father to death. His father was in
“frail health.” He breathed with the assistance of a portable
oxygen tank and used a walker to move about the home. (People
v. Miller (June 15, 2009, B208472) [nonpub. opn.].)2
Miller was convicted of second degree murder and “elder or
dependent-adult abuse resulting in death, with victim age-related
sentencing findings. (Pen. Code, §§ 187, subd. (a), 189, 368, subd.
(b)(1).)” (People v. Miller, supra, B208472.) The trial court
imposed a prison sentence of 15 years to life. In 2009, we
affirmed that conviction. (Ibid.)
In 2018, the Legislature passed Senate Bill No. 1437. It
authorized a procedure for those convicted of first or second
degree murder to petition for resentencing. (§ 1170.95.) It
changed the standard for first or second degree murder
convictions (§§ 188, 189) based on the felony murder rule or the
natural and probable consequences doctrine. “These changes,
which the Legislature adopted in 2018 in Senate Bill 1437 and
which went into effect on January 1, 2019, 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.” (People v. Anthony (2019) 32 Cal.App.5th 1102,
1147, italics added.)
In 2019, Miller filed a petition for resentencing under
section 1170.95. In the petition, he stated, among other things,
that he “was not a major participant in the felony or [he] did not
act with reckless indifference to human life during the course of
2 The People’s request for judicial notice, filed November 5,
2019, is granted.

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the crime or felony.” He said, “I was convicted of 2nd degree
murder under the natural and probable consequences doctrine or
under the 2nd degree felony murder doctrine and I could not now
be convicted of murder because of changes to Penal Code § 188,
effective January 1, 2019”; “I request that this court appoint
counsel for me during this re-sentencing process.”
After filing the section 1170.95 petition, the trial court did
not appoint counsel. It issued an order denying the petition,
stating, “The court has read and considered defendant Miller’s
petition for resentencing pursuant to [section] 1170.95. [¶] After
review of the court file and appellate opinion, it appears
defendant was the actual killer and is not entitled to relief as a
matter of law.”
DISCUSSION
The Section 1170.95 Petition
Miller contends the trial court erred by denying his section
1170.95 petition and by not appointing counsel for him.
The People contend Miller failed to make an initial prima
facie showing that he fell within the provisions for relief under
section 1170.95. They claim that because the record showed that
Miller was the actual killer and his petition was insufficient, the
trial court properly denied his section 1170.95 petition. We
agree.
Section 1170.95, subdivision (a) provides, in relevant part,
“A person convicted of felony murder or murder under a natural
and probable consequences theory may file a petition with the
court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any
remaining counts when all of the following conditions apply: [¶]
(1) A complaint, information, or indictment was filed against the

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petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial . . . . [¶] (3)
The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.”
Section 1170.95, subdivision (c) provides: “The court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines
shall be extended for good cause. If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.” (Italics added.)
In 2009, when we affirmed Miller’s second degree murder
conviction, we said, “Miller beat his father–a frail elderly man
attached to an oxygen tank–to death and did not assist him as he
lay dying.” (People v. Miller, supra, B208472, italics added.)
Murder committed by the actual killer is the type of crime that
falls outside the scope of relief authorized under section 1170.95.
(People v. Anthony, supra, 32 Cal.App.5th at p. 1147.)
Miller contends the trial court erred by denying his petition
without first issuing an order to show cause and by not
appointing counsel for him. We disagree.
The first step in the section 1170.95 procedure requires the
petitioner to make a prima facie showing that he or she is eligible

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for relief. In other analogous contexts, courts have held that a
prima facie showing for resentencing normally requires the
petitioner “to present evidence of facts” to show he or she falls
within the resentencing provision. (People v. Sledge (2017) 7
Cal.App.5th 1089, 1095.) This burden is not met by merely
checking boxes on a form containing conclusory allegations.
(People v. Perkins (2016) 244 Cal.App.4th 129, 137.) Instead, the
petition should contain “the factual basis” for those conclusory
statements. (Ibid.) That may include a summary of trial
evidence or “citations to the record of conviction that would have
directed the superior court to such evidence.” (Ibid.) The petition
should contain information about the nature of the crime. (Ibid.)
The petitioner has the “ ‘ “burden of proof as to each fact the
existence or nonexistence of which is essential to the claim for
relief . . . .” ’ ” (People v. Sherow (2015) 239 Cal.App.4th 875,
879.)
Here Miller simply checked boxes on a short form
containing conclusory allegations. He did not state facts relating
to the nature of his crime or his conduct in committing it. He did
not refer the court to trial testimony or citations to the record.
He did not attach exhibits. He did not state facts to show that he
was not the actual killer and he made no offer of proof. But even
assuming he met the initial statutory requirements by checking
boxes, that does not mean he was automatically entitled to relief.
Here all the trial court had before it was a short form with
conclusory allegations. The court could reasonably find that
because Miller did not produce evidence or show any factual
grounds for the issuance of an order to show cause, it should look
to the record to determine the actual nature of the crime. (People
v. Lewis (Jan. 6, 2020, B295998) _ Cal.App.5th _, _ [2020

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Cal.App. LEXIS 9, 8-9 [“Under section 1170.95, subdivision (c),
the court was required to review defendant's petition and
determine whether he made a prima facie showing that he ‘falls
within the provisions of’ the statute”].) We agree with the
authors of a treatise on California’s sentencing law. They
conclude, “It would be a gross misuse of judicial resources to
require the issuance of an order to show cause or even
appointment of counsel based solely on the allegations of the
[section 1170.95] petition, which frequently are erroneous, when
even a cursory review of the court file would show as a matter of
law that the petitioner is not eligible for relief.” (Couzens, Bigelow
& Prickett, Sentencing California Crimes (The Rutter Group Oct.
2019 update) § 23:51, p. 5, italics added.) Where the allegations
of the petition are directly refuted by the record, the court may
find the petitioner is not credible. (In re Serrano (1995) 10
Cal.4th 447, 456.) Here Miller’s statement in the petition that he
“was not a major participant in the felony” is refuted by the
record.
Miller contends the trial court erred by not initially
appointing counsel for him. The statute authorizes the
appointment of counsel. But “[n]othing in section 1170.95
requires the court to provide counsel to petitioner in the
preparation of the petition for resentencing.” (Couzens, Bigelow
& Prickett, Sentencing California Crimes, supra, § 23:51, p. 6.)
The standard practice allows the defendant to file the
petition and counsel to be appointed later. (People v. Superior
Court (Morales) (2017) 2 Cal.5th 523, 526-527.) Here, however,
the provision authorizing the appointment of counsel follows the
portion of the statute that requires the petitioner to initially
make a prima facie showing for relief. (§ 1170.95, subd. (c).) The

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sequential order of these provisions is significant. (People v.
Lewis, supra, _ Cal.App.5th _, _ [2020 Cal.App. LEXIS 9, 15] [“we
construe the requirement to appoint counsel as arising in
accordance with the sequence of actions described in section
1170.95[,] subdivision (c); that is, after the court determines that
the petitioner has made a prima facie showing that petitioner
‘falls within the provisions’ of the statute”].) As the authors of
the sentencing treatise note, “[T]he court may conduct a
preliminary review of the circumstances of the petition prior to
appointing counsel.” (Couzens, Bigelow & Prickett, Sentencing
California Crimes, supra, § 23:51, p. 6.) The court does not err by
not appointing counsel in cases where no order to show cause
could issue. (People v. Cornelius (Jan. 7, 2020, B296605) _
Cal.App.5th _, _ [2020 Cal.App. LEXIS 11, 5] [claim that
defendant was entitled to appointment of counsel rejected where
he was “indisputably ineligible for relief”].)
Miller contends the trial court erred by initially reviewing
the record after it received the petition and then denying relief.
In cases where a valid petition is filed, the court may
properly delay reviewing the record until after the People file
their response. But, in light of the unique facts of this case, we
conclude the trial court acted properly by promptly reviewing the
record. In his petition, Miller stated, “There has been a prior
determination by a court or jury that I was not a major
participant and/or did not act with reckless indifference to
human life . . . . Therefore, I am entitled to be re-sentenced
pursuant to § 1170.95(d)(2).” (Italics added.)
Because of this representation, the trial court could
reasonably determine that it should immediately review the
record because this allegation, if true, would authorize the

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granting of the petition. But once the trial court reviewed the
record, it found the opposite was true. The petition, therefore,
had no merit. Where the review of the court file shows, as here,
that the petitioner is not entitled to relief, “it would be entirely
appropriate to summarily deny the petition based on petitioner’s
failure to establish even a prima facie basis of eligibility for
resentencing.” (Couzens, Bigelow & Prickett, Sentencing
California Crimes, supra, § 23:51, p. 5.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.

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Debra Cole-Hall, Judge
Superior Court County of Los Angeles
______________________________
Steven A. Brody, 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, Acting
Assistant Attorney General, Amanda V. Lopez and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.

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