P. v. Miles

Filed 11/3/20 P. v. Miles 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
HECTOR LEEAUDRA MILES,
Defendant and Appellant.
2d Crim. No. B302041
(Super. Ct. No. NA047846)
(Los Angeles County)
Hector Miles appeals from the trial court’s denial of
his petition for resentencing. (Pen. Code,1 § 1170.95.) He
contends the court erred when it summarily denied his petition
without appointing counsel. We affirm.
FACTUAL AND PROCEDURAL HISTORY
After a six-month-long gang war, prosecutors charged
Miles with three counts of murder (§ 187, subd. (a); counts 1, 5, &
6), four counts of attempted murder (§§ 664/187, subd. (a); counts
2, 3, 4, & 8), and one count of conspiracy to commit murder
1 Unlabeled statutory references are to the Penal Code.

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(§ 182, subd. (a); count 7).2 (People v. Miles (Aug. 17, 2005,
B173610) 2005 WL 1971253 at pp. *1-3 (Miles) [nonpub. opn.].)
The information also included a multiple murder special
circumstance allegation (§ 190.2, subd. (a)(3)), allegations that
Miles committed his crimes for the benefit of a criminal street
gang (§ 186.22, subd. (b)), and various firearm allegations
(§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c), (d), & (e)). (Id. at
p. *3.)
After the presentation of evidence, the trial court
instructed the jury on first and second degree murder with malice
aforethought. (See CALJIC Nos. 8.10, 8.11, 8.20, & 8.30.) These
instructions told jurors that malice aforethought was required for
a murder conviction. They differentiated between first and
second degree murder by explaining that the former required
premeditation and deliberation, while the latter did not.
The trial court also instructed the jury on aiding and
abetting principles (see CALJIC No. 3.01), but did not provide
instructions on the natural and probable consequences doctrine
as it relates to aider and abettor liability (see CALJIC No. 3.02).
The court did not provide any other instruction on the natural
and probable consequences doctrine, nor did it instruct on felony
murder. The verdict forms similarly did not reference felony
murder or the natural and probable consequences as it relates to
murder.
Jurors convicted Miles of the murder charged in
count 5, deeming it second degree (§ 189, subd. (b)), and the
2 We grant the Attorney General’s unopposed request to
take judicial notice of the record in Miles’s previous appeal.
(People v. Garner (2016) 244 Cal.App.4th 1113, 1116, fn. 2; see
Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

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conspiracy charged in count 7. (Miles, supra, 2005 WL 1971253
at p. *4.) They also found true the firearm allegation tied to
count 5 and the gang allegations tied to both counts. (Ibid.) They
acquitted Miles of the murder charged in count 6, and found not
true the multiple murder special circumstance allegation. (Ibid.)
They were unable to reach a verdict on all remaining counts, and
the trial court declared a mistrial on those charges. (Ibid.)
After the presentation of evidence in Miles’s second
trial, the court provided the jury with the same instructions and
verdict forms. Jurors convicted Miles of the murder charged in
count 1, deeming it first degree (§ 189, subd. (a)), and the
attempted murder charged in count 4. (Miles, supra, 2005 WL
1971253 at p. *4.) They also found true the multiple murder
special circumstance allegation and the gang and firearm
allegations. (Ibid.) They acquitted Miles of two of the remaining
attempted murder charges, and deadlocked on the third, which
the trial court dismissed in the interest of justice. (Ibid.)
The trial court sentenced Miles to consecutive terms
of life in state prison without the possibility of parole on count 1,
life with the possibility of parole on count 4, 15 years to life on
count 5, and 25 years to life on count 7. (Miles, supra, 2005 WL
1971253 at p. *4.) It also imposed sentence enhancements on the
gang and firearm allegations found true by the jury. (Ibid.)
In 2019, Miles petitioned the trial court to vacate his
murder convictions and resentence him pursuant to section
1170.95. In his petition, Miles alleged that the information
permitted prosecutors to proceed on a felony murder theory or
natural and probable consequences theory, that he was convicted
of murder under one of these theories, and that he could not be
convicted of murder under the current versions of sections 188

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and 189. He also alleged that he was not the actual killer, did
not act with the intent to kill, and was not a major participant in
the underlying crime or did not act with reckless indifference to
human life. He requested appointment of counsel to assist him in
the resentencing process.
The trial court summarily denied Miles’s petition.
The court found that Miles was not convicted of felony murder or
murder under a natural and probable consequences theory but
was either the actual killer or a direct aider and abettor. Section
1170.95 was thus inapplicable.
DISCUSSION
Section 1170.95 petition
Miles contends the trial court erred when it denied
his section 1170.95 resentencing petition without appointing
counsel. We disagree.
In 2018, the Legislature enacted Senate Bill No. 1437
(S.B. 1437) 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 [was] 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).) To accomplish these goals, S.B. 1437 redefined
“malice” in section 188, and narrowed the classes of persons
liable for felony murder under section 189. (Stats. 2018, ch. 1015,
§§ 2-3.) It also added section 1170.95 to the Penal Code, which
permits those convicted of felony murder or murder under a
natural and probable consequences theory to petition to have
their murder convictions vacated and to be resentenced on any
remaining counts. (Stats. 2018, ch. 1015, § 4.)

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A convicted defendant may petition for resentencing
where the information allowed prosecutors to proceed under a
felony murder theory or a natural and probable consequences
theory, the defendant was convicted of murder, and the
defendant could not now be convicted of murder under the
amendments to sections 188 and 189. (§ 1170.95, subd. (a).) If
the defendant files a petition declaring that they meet these
requirements (id., subd. (b)(1)(A)), the trial court undertakes a
“two-step process” to determine whether they are eligible for
relief (People v. Offley (2020) 48 Cal.App.5th 588, 596; see
§ 1170.95, subd. (c)). First, the court determines “whether the
defendant has made a ‘prima facie showing [that they] “fall
within the provisions” of the statute.’ [Citation.]” (Offley, at pp.
596-597, alterations omitted.) In making that determination, the
court “may examine the record of conviction” (id. at p. 597),
including the instructions provided to the jury at trial and any
prior decision on appeal (People v. Gomez (2020) 52 Cal.App.5th
1, 16 (Gomez), review granted Oct. 14, 2020, S264033). If that
examination reveals that the defendant does not fall within the
provisions of section 1170.95 as a matter of law, the court may
summarily deny the petition without appointing counsel.3
3 Nearly all decisions published to date are in accord. (See
Gomez, supra, 52 Cal.App.5th at pp. 15-16, review granted;
People v. Soto (2020) 51 Cal.App.5th 1043, 1054, fn. 10, review
granted Sept. 23, 2020, S263939; People v. Tarkington (2020) 49
Cal.App.5th 892, 899-902 (Tarkington), review granted Aug. 12,
2020, S263219; People v. Lee (2020) 49 Cal.App.5th 254, 262-263,
review granted July 15, 2020, S262459; People v. Edwards (2020)
48 Cal.App.5th 666, 673-675, review granted July 8, 2020,
S262481; People v. Torres (2020) 46 Cal.App.5th 1168, 1178,
review granted June 24, 2020, S262011; People v. Verdugo (2020)

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(Offley, at p. 597.) But if the examination instead reveals that
the defendant may be eligible for relief, the court must proceed to
the second step and appoint counsel to assist in subsequent
proceedings. (Ibid.)
The record of conviction here reveals that Miles was
ineligible for section 1170.95 relief as a matter of law. As to
count 1, in our previous opinion we observed that Miles was
convicted of first degree premeditated murder as an aider and
abettor, and that he acted with the intent to kill. (Miles, supra,
2005 WL 1971253 at p. *11, fn. 6.) Miles does not challenge those
observations here. The trial court thus correctly concluded that
he was ineligible for section 1170.95 resentencing on count 1.
(Lewis, supra, 43 Cal.App.5th at pp. 1138-1139 [defendant
convicted of first degree premeditated murder as aider and
abettor ineligible for section 1170.95 relief], review granted; see
also Stats. 2018, ch. 1015, § 1, subd. (f) [S.B. 1437 relief not
available to defendants who act with intent to kill].)
As to count 5, the record of conviction reveals that
Miles was not convicted of second degree murder under a felony
murder theory or the natural and probable consequences theory:
At trial, the court provided jurors with no instructions related to
either theory, but instead provided instructions only on murder
with malice aforethought. The verdict forms similarly did not
reference felony murder or murder under the natural and
probable consequences doctrine. Miles was thus convicted of this
44 Cal.App.5th 320, 327-333, review granted Mar. 18, 2020,
S260493; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review
granted Mar. 18, 2020, S260410; People v. Lewis (2020) 43
Cal.App.5th 1128, 1137-1140 (Lewis), review granted Mar. 18,
2020, S260598.) We disagree with People v. Cooper (2020) 54
Cal.App.5th 106, 118-123, which adopted a contrary view.

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murder either as the direct perpetrator or as an aider and
abettor. As such, he was ineligible for section 1170.95 relief as a
matter of law, as the court below correctly concluded.
(Tarkington, supra, 49 Cal.App.5th at p. 899 [proper to
summarily deny resentencing petition where jury not instructed
on felony murder or natural and probable consequences doctrine],
review granted.)
Abstract of judgment
The Attorney General requests that we remand the
case to the trial court with directions to correct the abstract of
judgment. But the errors the Attorney General identifies were in
the abstract produced prior to Miles’s previous appeal. In our
decision in that appeal, we modified Miles’s sentence, ordered
correction of some of the errors the Attorney General now
identifies, and ordered the clerk of the court to prepare an
amended abstract of judgment. The amended abstract is not
included in the record in this appeal, nor has the Attorney
General identified any errors with it. We thus have no occasion
to order its correction.
DISPOSITION
The trial court’s order denying Miles’s petition for
resentencing pursuant to section 1170.95, entered September 4,
2019, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J. PERREN, J.

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Judith Levey Meyer, Judge
Superior Court County of Los Angeles
______________________________
James M. Crawford, 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 William N. Frank,
Deputy Attorneys General, for Plaintiff and Respondent.

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