P. v. Miner

Filed 3/30/21 P. v. Miner CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
GREGORY DOUGLAS MINER,
Defendant and Appellant.
B301803
(Los Angeles County
Super. Ct. No. LA044952)
APPEAL from an order of the Superior Court of
Los Angeles County, Alan Schneider, Judge. Affirmed.
Jonathan E. Demson, 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, Charles S. Lee and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________

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Gregory Douglas Miner appeals the trial court’s denial of
his request for resentencing under Penal Code section 1170.95,
the resentencing provision of Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Stats. 2018, ch. 1015) (SB 1437). We affirm the
ruling because his conviction included special circumstance
findings that remain in place. This makes him ineligible for
resentencing. Section 1170.95 is not a proper avenue to challenge
these findings. Statutory citations are to the Penal Code.
I
In 2007, a jury convicted Miner of two counts of first degree
robbery (§ 211), one count of first degree burglary (§ 459), and
two counts of first degree murder (§ 187, subd. (a)). The victims
were William Lasky and Bertha Lasky. The jury found true
special circumstances that each murder occurred during a
robbery and burglary. (§ 190.2, subd. (a)(17).) The jury also
made true findings for allegations that Miner personally used a
knife in the murders, robberies, and burglary. (§ 12022, subd.
(b)(1).)
Regarding the section 190.2, subdivision (a)(17) special
circumstances, the trial court instructed the jury that if it found
Miner was not the actual killer, or if it could not decide whether
Miner was the actual killer or an aider or abettor, the jury could
find the special circumstance to be true only if it was “satisfied
beyond a reasonable doubt that [Miner] with the intent to kill
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted any actor in the commission of the murder
in the first degree, or with reckless indifference to human life and
as a major participant, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted in the commission of the

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crime of robbery or burglary which resulted in the death of a
human being, namely William Lasky or Bertha Lasky.”
In 2009, this court affirmed Miner’s murder convictions. (It
conditionally reversed and remanded the robbery and burglary
convictions for a hearing to determine whether the prosecution of
those counts was within the statute of limitations.)
The current case began in 2019.
On February 19, 2019, Miner filed a petition for
resentencing under section 1170.95. His petition was on a form
template. Miner declared he had been convicted of murder under
the felony-murder rule or the natural and probable consequences
doctrine and he could not now be convicted of murder because of
the changes to sections 188 and 189.
The court appointed Miner’s original counsel of record from
his trial to be Miner’s counsel for the petition.
The People filed a response opposing the petition. They
argued SB 1437 was invalid and unconstitutional. They also said
section 1170.95 was inapplicable to Miner’s murder conviction
because the jury’s true finding of the special circumstances
satisfied the newly enacted section 189, subdivision (e). The
special circumstances finding meant the jury found Miner guilty
as a major participant who acted with reckless indifference to
human life.
The People submitted as exhibits the opinion in Miner’s
direct appeal and an order reflecting the jury’s verdict and
findings.
On August 29, 2019, the court held a hearing on the
petition. The prosecution argued Miner did not make a prima
facie case of eligibility for resentencing. Miner’s attorney
disagreed and said, “I understand that in order for the jury to

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have convicted Mr. Miner of the special circumstance they would
have had to find that he was a major participant in the
underlying felony. [¶] My argument goes to whether or not the
jury actually did find that special [circumstance] in the sense
that they found the special circumstance not only because they
found him to be a major participant, or perhaps they thought he
was a major participant, but more so I think because there was
multiple decedents in this matter. [¶] So I’m not entirely sure
that they found exactly that finding.”
The court responded, “And of course you’re trying to attack
the underlying findings of the jury based on the facts of the case,”
and Miner’s attorney responded, “Yeah. If I could very briefly go
into the facts.” Counsel described facts suggesting Miner had no
involvement in the underlying burglary or murders. Counsel did
not mention People v. Banks (2015) 61 Cal.4th 788 (Banks),
People v. Clark (2016) 63 Cal.4th 522 (Clark), or otherwise argue
that the special circumstance findings were invalid due to related
changes in the meaning of “major participant” or “reckless
indifference to human life.”
The court denied Miner’s motion. Responding to counsel’s
argument suggesting Miner was not involved in the murders, the
court said, “Obviously, the jury disagreed.” The court found
Miner failed to make a prima facie case because the jury had
found he was the actual killer of the two victims or a major
participant in the residential burglary who acted with reckless
indifference to human life.
Miner appealed this trial court ruling. He maintains he
demonstrated a prima facie case of eligibility for relief
notwithstanding the special circumstance findings. He says
these findings do not make him ineligible as a matter of law

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because of two intervening California Supreme Court decisions:
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,
which clarified the meaning of “major participant” and “reckless
indifference to human life.”
II
The Legislature enacted section 1170.95 with SB 1437.
The same bill narrowed the scope of liability for felony murder.
(See People v. Gomez (2020) 52 Cal.App.5th 1, 11–12, review
granted Oct. 14, 2020, S264033 (Gomez).) Specifically, the
Legislature amended section 189, the felony-murder rule, to
provide for liability only where the defendant (1) actually killed
the victim; (2) aided in the murder with intent to kill; or (3) “was
a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.” (§ 189, subd. (e), italics added; see also Gomez,
at p. 12.) The last clause is central to this appeal.
Section 190.2 is the felony-murder special circumstances
statute. SB 1437 did not touch this provision. (See People v.
Galvan (2020) 52 Cal.App.5th 1134, 1140, review granted Oct. 14,
2020, S264284 (Galvan).) The statute identifies the
circumstances under which murderers and accomplices can be
punished by death or life imprisonment without parole.
Participating in a murder during a robbery or burglary is one of
these circumstances. (§ 190.2, subd. (a)(17).) For defendants who
did not kill and lacked intent to kill, section 190.2, subdivision (d)
permits such punishment only if they acted “with reckless
indifference to human life and as a major participant” to a
qualifying felony like robbery or burglary. Thus, in key respects,
the new language in section 189 tracks the language of the
special circumstances statute.

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Section 1170.95 allows certain people to petition their
sentencing court to have their murder convictions vacated and to
be resentenced on remaining counts. (§ 1170.95, subd. (a).) The
statute establishes a procedure for courts to evaluate the petition
and obtain further briefing and information from the parties if
the petition has potential merit. (§ 1170.95, subds. (b)(2)–(d)(3).)
Section 1170.95 contains various requirements for
resentencing petitions. Among these requirements, petitioners
must make a showing they “could not be convicted of first or
second degree murder because of changes to Section 188 or 189.”
(§ 1170.95, subds. (a)(3) & (b)(1)(A).)
III
We agree with the Galvan line of decisions that say an
intact special circumstance finding, even one from before Banks
and Clark, precludes relief under section 1170.95. (Gomez, supra,
52 Cal.App.5th at pp. 14–17, review granted; Galvan, supra, 52
Cal.App.5th at pp. 1142–1143, review granted; People v. Murillo
(2020) 54 Cal.App.5th 160, 167–169, review granted Nov. 18,
2020, S264978; People v. Allison (2020) 55 Cal.App.5th 449, 457
(Allison); People v. Jones (2020) 56 Cal.App.5th 474, 482, review
granted Jan. 27, 2021, S265854 (Jones); People v. Nunez (2020)
57 Cal.App.5th 78, 83, review granted Jan. 13, 2021, S265918
(Nunez).) We agree the proper procedure for people in Miner’s
situation is to challenge their special circumstances through a
habeas corpus petition. (E.g., Gomez, at p. 17; Galvan, at p. 1142;
Jones, at pp. 482–483.)
We likewise agree section 1170.95 does not provide
someone like Miner an avenue to challenge special circumstance
findings. (E.g., Galvan, supra, 52 Cal.App.5th at p. 1142, review
granted.) “Nothing in the language of section 1170.95 suggests it

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was intended to provide redress for allegedly erroneous prior
factfinding. . . . The purpose of section 1170.95 is to give
defendants the benefit of amended sections 188 and 189 with
respect to issues not previously determined, not to provide a do-
over on factual disputes that have already been resolved.”
(Allison, supra, 55 Cal.App.5th at p. 461.) The proper avenue for
relief is a petition for writ of habeas corpus. (E.g., Galvan, supra,
at p. 1142.) Miner cannot challenge the findings through section
1170.95.
Miner incorrectly says he does not need to challenge his
special circumstance findings at all. His special circumstance
findings preclude relief. By finding the special circumstance
allegations true, the jury necessarily found Miner either
participated in the robberies and burglary with the intent to kill
the victims or he was a major participant in those crimes who
acted with reckless indifference to human life. Either finding
would allow Miner to be convicted of murder notwithstanding
changes to section 188 and 189, so he was not eligible for relief.
(E.g., Gomez, supra, 52 Cal.App.5th at p. 15, review granted.)
Miner’s special circumstance findings did not disappear
after Banks and Clark; they remain valid and binding unless a
court overturns them on collateral attack. (Jones, supra, 56
Cal.App.5th at p. 489, review granted (conc. opn. of Menetrez, J.);
Nunez, supra, 57 Cal.App.5th at p. 94, review granted.)
To make a prima facie case, Miner must show he could not
be convicted because of the changes to section 188 and 189, a
burden he cannot meet with the special circumstance findings
intact. (See § 1170.95, subd. (a)(3).) Miner challenges the import
of the findings by pointing to the Banks/Clark clarifications of
“major participant” and “reckless indifference to human life.”

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Under this argument, though, it would be the Banks/Clark
clarifications, not the changes to section 188 and 189, that would
prevent him from being convicted of murder today. (E.g., Galvan,
supra, 52 Cal.App.5th at p. 1142, review granted.) Miner cannot
make a prima facie case of entitlement to relief with his special
circumstance findings still in place.
We agree with Allison’s analysis explaining section
1170.95’s silence about whether special circumstance findings
preclude eligibility does not imply eligibility. (Allison, supra, 55
Cal.App.5th at p. 460.) “The Legislature could not and did not
need to spell out every ground for denying a petition.” (Ibid.)
Miner has not shown he is entitled to relief.
DISPOSITION
We affirm the order denying Miner’s resentencing petition.
WILEY, J.
We concur:
BIGELOW, P. J.
STRATTON, J.

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