P. v. Cummings

Filed 1/26/21 P. v. Cummings 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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,
Plaintiff and Respondent,
v.
MILTON CUMMINGS III,
Defendant and Appellant.
B299490
(Los Angeles County
Super. Ct. No. KA038352-02)
APPEAL from an order of the Superior Court of Los
Angeles County, David C. Brougham, 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, Senior
Assistant Attorney General, Idan Ivri, Acting Supervising
Deputy Attorney General, Allison H. Chung, Deputy Attorney
General, for Plaintiff and Respondent.

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Years ago, a trial jury found Milton Cummings III
(defendant) guilty of murder and found true a special
circumstance allegation, which triggered a life without parole
sentence. More recently, defendant filed a petition to vacate his
murder conviction in light of amendments Senate Bill No. 1437
(2017-2018 Reg. Sess.) made to the Penal Code’s murder statutes.
The trial court summarily denied the petition without first
appointing counsel, relying on this court’s prior holding that the
jury was told it must find defendant intended to kill the murder
victim in order to find the special circumstance true. We consider
whether the trial court correctly decided defendant was ineligible
for section 1170.95 relief as a matter of law.
I. BACKGROUND
In 1998, the Los Angeles County District Attorney charged
defendant with murder, attempted murder, shooting at an
occupied motor vehicle (Pen. Code,1 § 246), and permitting
another to shoot from a vehicle (§ 12034(b)) in connection with a
September 1997 gang-related drive-by shooting. A co-defendant,
Samont Lamont Winn (Winn), was a member of the same
criminal street gang as defendant and charged with murdering
the same victim. The information alleged the victim’s murder
was perpetrated by means of discharging a firearm from a motor
vehicle with intent to inflict death, a special circumstance that
would call for at least a life without parole sentence if found true.
(§ 190.2, subd. (a)(21).)
According to the evidence presented at trial, defendant was
driving a vehicle when Winn, a passenger in the car, spotted the
1 Undesignated statutory references are to the Penal Code.

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murder victim in another car and believed he was a member of a
rival gang. Winn told defendant he was “gonna get him [i.e., the
victim]” and “gonna do him,” and as defendant later drove
alongside the victim’s car, Winn fired five to seven gunshots into
the other car, killing the victim and wounding another
passenger.2
Defendant’s jury was instructed on principles of direct
aiding and abetting with CALJIC No. 3.01. The jury was also
instructed on the natural and probable consequences doctrine
(CALJIC No. 3.02) and on second degree felony murder principles
(CALJIC Nos. 8.32 and 8.34). As to the special circumstance
allegation, defendant’s jury received a written instruction that
was an unmodified version of CALJIC No. 8.81.21,3 but as we will
momentarily discuss in greater detail, the instructions as given
orally by the court and the arguments as made by counsel
informed the jury it must find defendant had the intent to kill in
2 This court previously granted the Attorney General’s
motion to take judicial notice of our prior opinion and the record
in defendant’s direct appeal from his convictions at trial, Court of
Appeal case number B125529, plus a subsequent habeas
proceeding, case number B282768.
3 The written instruction read: “To find that the special
circumstance, referred to in these instructions as murder by
means of an intentional discharge of a firearm from a motor
vehicle, is true, it must be proved: [¶] 1. The murder was
perpetrated by means of discharging a firearm from a motor
vehicle; [¶] 2. The perpetrator intentionally discharged the
firearm at another person or persons outside the vehicle; and [¶]
3. The perpetrator, at the time he discharged the firearm,
intended to inflict death.”

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order to find the alleged special circumstance true. The jury
found defendant guilty of murder (and all other counts on which
it was asked to make a finding) and found the associated special
circumstance true.
On direct appeal, defendant argued the jury’s special
circumstance true finding should be reversed because the written
instruction the jury was given did not require the jury to find
defendant, as an aider and abettor in the murder, had the intent
to kill in order to find the special circumstance true as to him.
This court held there was no error in instructing the jury because
the record as a whole demonstrated the jury understood it must
find defendant had the intent to kill to find the special
circumstance true. We quote the pertinent excerpts from the
prior opinion at length:
“The trial court orally instructed both juries [defendant and
Winn were tried using two juries] simultaneously. It read to the
juries a modified version of CALJIC No. 8.81.21 relating to the
special circumstance of murder by means of discharging a firearm
from a motor vehicle. As modified, the instruction stated that in
order to find the special circumstance true, the jury had to find
that ‘[t]he perpetrator or any aider and abettor intended to inflict
death at the time the firearm was discharged.’ It had previously
discussed with all counsel the modification and all counsel had
indicated they had no objection to the modified version of the
instruction. The modification was designed to inform the jury
that both the perpetrator (Winn) and the aider and abettor
([defendant]) had to have intended to inflict death at the time the
firearm was discharged. After this modified instruction was read
to the juries, the attorneys argued the case to each jury
separately. The prosecutor and defense counsel for [defendant]

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both repeatedly, clearly and specifically argued to the jury that it
was required to separately determine whether or not [defendant]
had an intent to kill before it could find the special circumstance
true. The trial court provided both juries with written jury
instructions. Winn’s jury received the modified written
instruction but [defendant’s] jury received an unmodified version
of CALJIC No. 8.81.21.
“The modification of CALJIC No. 8.81.21 so it would apply
to both Winn and [defendant] by using the word ‘or’ to refer
separately to each defendant was not error. It was understood by
the court and all counsel to apply to both defendants and to
require the jury to find each defendant had an intent to kill
before it could find the special circumstance true. No objection to
the final wording was made and the argument of counsel reflects
that counsel understood the meaning of the instruction as read to
each jury. If trial counsel found the instruction objectionable, he
was obligated to request further modification at trial. [Citation.]
“Defendant[’s] . . . argument on appeal in this regard
invokes hypertechnical rules of grammar relating to conjunctive
versus disjunctive terms and ignores the context within which
the instructions were read to the jury, which included detailed
argument by trial counsel. No error occurred when the trial court
read the instruction to the jury.
“Even if error occurred in the trial court’s modification of
CALJIC No. 8.81.21 that it read to the jury, or in the court’s
failure to include the modification in the package of written
instructions provided to [defendant’s] jury, it is clear that no
prejudice occurred. The record shows the jury knew it had to
specifically find that the aider and abettor ([defendant]) had the

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intent to kill before it could return a true finding on the special
circumstance allegation. [¶] . . . [¶]
“In this case the parties recognized intent to kill was at
issue and presented all the evidence they could on that issue.
Both counsel focused the attention of the jury on that issue in
argument. It is therefore clear that the jury was well aware it
had to find [defendant] intended to kill in order to find the special
circumstance to be true. Moreover, the evidence that [defendant]
acted with the intent to kill is overwhelming.” (People v. Winn et
al. (Jul. 12, 1999, B125529) [nonpub. opn.].)
Twenty years after this court’s decision on direct appeal,
defendant filed a section 1170.95 petition seeking to vacate his
murder conviction. The petition asserts defendant was not the
murder victim’s actual killer, he did not harbor the intent to kill,
and he was not a major participant in the murder who acted with
reckless indifference to human life. The petition requested the
trial court to appoint counsel to assist him.
The trial court denied the petition without appointing
counsel. Relying on its review of the “court file,” the court
reasoned the trial jury was required to find, and necessarily
determined in finding the special circumstance true, that
defendant had the intent to kill—making him ineligible for
Senate Bill 1437 relief.
II. DISCUSSION
The challenged trial court ruling is correct. As a prior
panel of this court held in its opinion resolving defendant’s direct
appeal, the oral charge to the jury and the argument of counsel
made it clear the jury could only find the murder special
circumstance true if it found defendant intended to kill the

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murder victim (making him a direct aider and abettor).4 The trial
court appropriately relied on that holding, and it establishes
defendant is ineligible for section 1170.95 relief as a matter of
law. (§ 1170.95, subd. (a)(3); People v. Verdugo (2020) 44
Cal.App.5th 320, 330 [the record of conviction may establish that
defendant “is ineligible for relief as a matter of law because he or
she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189” (Verdugo)], review granted Mar. 18, 2020, S260493;
People v. Martinez (2019) 31 Cal.App.5th 719, 723 [“Senate Bill
1437 was enacted to ‘amend 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, subd. (f).)”], italics added; see also Verdugo, supra, at
333 [proper for a trial court to rely on a prior Court of Appeal
opinion].) The trial court was therefore entitled to summarily
deny defendant’s section 1170.95 petition without appointing
counsel. (People v. Smith (2020) 49 Cal.App.5th 85, 92 [“If it is
4 Defendant points to language in this court’s brief order
denying his petition for writ of habeas corpus that states he was
convicted under a direct aiding and abetting theory as well as a
natural and probable consequences theory. The language of the
summary denial order, which resolved a different issue
presented, is not determinative here. (Kowis v. Howard (1992) 3
Cal.4th 888, 894-896.)

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clear from the record of conviction that the petitioner cannot
establish eligibility as a matter of law, the trial court may deny
the petition. [Citation.] If, however, a determination of eligibility
requires an assessment of the evidence concerning the
commission of the petitioner’s offense, the trial court must
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95”], review granted Jul. 22, 2020,
S262835.)
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.

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