Filed 4/27/22 P. v. Miskam CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed.

Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Alan C. Amann and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Dusty Matis Miskam appeals from the January 21, 2021 order of the superior court, dismissing his petition for resentencing on his 2017 conviction for voluntary manslaughter. (Pen. Code,[1] § 1170.95.) In an unpublished decision, we affirmed the order dismissing defendant’s petition on the ground that persons convicted of voluntary manslaughter were not entitled to relief under section 1170.95. (People v. Miskam (Nov. 4, 2021, E076504) [nonpub. opn.].)

The Supreme Court granted review on January 19, 2022, and transferred the matter back to this court with directions to vacate our opinion and reconsider the cause in light of Senate Bill No. 775 (Senate Bill 775) (Stats. 2021, ch. 551, § 2), which amended section 1170.95 to clarify, among other things, that persons convicted of voluntary manslaughter are eligible for resentencing under the statute. (Id. at §§ 1-2.) On January 21, 2022, we vacated our opinion and directed the parties to file supplemental briefs addressing the effect of Senate Bill 775.

In defendant’s supplemental brief, he asserts that he was charged with murder and, had he proceeded to trial, he could have been convicted under the felony-murder rule or provocative act murder theory. Instead, he accepted a plea offer for voluntary manslaughter. He argues that in light of Senate Bill 775, the 2021 order dismissing his resentencing petition must be reversed and the matter remanded with directions to conduct further proceedings under section 1170.95. The People contend that the prosecution could not have tried defendant for murder under the felony-murder rule, given the manner in which the killing occurred in this case. Instead, the prosecution could only have proceeded under a provocative act murder theory, which is still a valid theory under amended section 1170.95. We agree with the People and affirm the court’s order dismissing defendant’s petition since he is ineligible for relief.

PROCEDURAL BACKGROUND

In 2016, defendant was charged by information with murder (§ 187, subd. (a), count 1) and second degree robbery (§ 211, count 2). He entered a plea agreement and pled guilty to voluntary manslaughter (§ 192, subd. (a), added count 3) and grand theft from a person (§ 487, subd. (c), added count 4). In exchange, he was sentenced to a total term of 11 years in state prison and counts 1 and 2 were dismissed.

On February 27, 2019, following the passage of Senate Bill No. 1437 (Senate Bill 1437), which added section 1170.95 to the Penal Code, defendant petitioned for resentencing and checked the box alleging that he pled guilty or no contest to voluntary manslaughter because he believed he could have been convicted of first or second degree murder at trial pursuant to the felony-murder rule or the natural and probable consequences doctrine. He also alleged that he could not now be convicted of murder because of the amendments to sections 188 and 189. He requested appointment of counsel. The People moved to strike defendant’s petition, arguing that Senate Bill No. 1437 was unconstitutional.

On June 13, 2019, defendant filed an opposition to the People’s motion to strike the petition, arguing that Senate Bill 1437 was not unconstitutional. The hearing on the petition was continued several times. On June 1, 2020, defendant filed a “Defense Brief in Support of a Prima Facie Showing Per Penal Code § 1170.95.” The defense brief provided a statement of facts, taken from the police report and preliminary hearing.[2] It stated that defendant, his sister, and his brother, conspired to rob J.D., who was his sister’s friend. Defendant’s sister told J.D. she wanted to have sex with him and convinced him to drive her to an abandoned area in the woods, so they could drink beer and have sex. Soon after arriving at the location she had selected, they were approached by two masked men—defendant and his brother. Defendant’s brother tackled his sister, while defendant demanded that J.D. hand over his wallet and remove his clothing. J.D. complied, and while he was handing over his wallet, defendant’s sister was hysterically screaming, which led J.D. to believe he needed to save her. J.D. pulled defendant’s brother off of her and threw him to the ground, causing him to fall on his own knife and stab himself in the chest. Defendant grabbed J.D. and put him in a chokehold. Defendant and his brother then fled the scene in their vehicle. Defendant’s brother was pronounced dead at a hospital soon thereafter.

In the defense brief, defendant argued that he alleged a prima facie case for relief under section 1170.95, as he accepted a plea offer in lieu of a trial at which he could have been convicted of first or second degree murder. He asserted that he was not the actual killer, which he said should not be disputed by the prosecution “as their original theory of this case was one of a provocative act murder theory.” Defendant stated that his brother, an accomplice to the robbery, was killed as a result of J.D. pushing him and causing him to fall on his own knife. Defendant argued that section 1170.95 provided relief to those convicted of murder under a natural and probable consequences theory and claimed that provocative act murders fell under that category. He proceeded to state the elements required under a provocative act theory and pointed out that, whether the defendant or an accomplice committed the provocative act, the prosecution had to prove the defendant or accomplice “knew that the natural and probable consequences of the provocative act were [sic] dangerous to human life and then acted with conscious disregard for life” and that death was a “natural and probable consequence” of the provocative act. Defendant thus claimed that section 1170.95 applied to the provocative act murder theory as a murder theory “under the natural and probable consequences doctrine.”

The People filed an opposition to the defense brief and simply asserted that defendant could not make a prima facie case because he was not convicted of a qualifying offense, since he entered a plea to voluntary manslaughter, not murder.

On January 21, 2021, the court held a hearing on the petition. The People argued that defendant was not eligible for resentencing since he pled to manslaughter. The court acknowledged that defendant was convicted by a plea agreement for voluntary manslaughter and stated that a plea to voluntary manslaughter was not eligible for relief under section 1170.95. The court found that a prima facie showing had not been made and denied defendant’s petition.

DISCUSSION

Defendant is Ineligible for Relief

Senate Bill 1437 (Stats. 2018, ch. 1015) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder, and to limit the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis); Stats. 2018, ch. 1015, § 1, subd. (f).) Under sections 188 and 189, as amended, murder liability can no longer be imposed on a person who was not the actual killer, who did not act with the intent to kill, or who was not a major participant in the underlying felony who acted with reckless indifference to human life. (Lewis, at p. 959.)

Senate Bill 1437 also added section 1170.95 to the Penal Code. (Stats. 2018, ch. 1015, § 4.) In its original form, section 1170.95 allowed persons convicted of murder under the former law, but who could not be convicted of murder under the amended law, to petition the sentencing court to vacate their murder convictions and to be resentenced on any remaining convictions. (People v. Montes (2021) 71 Cal.App.5th 1001, 1005.)

Senate Bill 775 “clarifies” that “persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1, subd. (a).) To this end, Senate Bill 775 amended section 1170.95, effective January 1, 2022, to provide: “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a), italics added, as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)

Defendant argues that the amendments made to section 1170.95 are ameliorative and apply retroactively to his petition. He asserts that given his qualifying conviction of manslaughter, he can establish a prima facie showing of eligibility for resentencing; thus, we should reverse and remand the matter for full proceedings under amended section 1170.95. The People disagree, contending that defendant is ineligible for relief because he was not charged with murder under circumstances that would have allowed the prosecution to pursue a theory of liability where malice might have been imputed to him, such as felony murder or the natural and probable consequences doctrine. Rather, the only theory of murder available to the prosecution under the facts of this case was the provocative act murder theory, which requires that the defendant personally harbor the mens rea of malice. Therefore, the People argue, defendant is ineligible for relief irrespective of Senate Bill 775. We agree with the People.

A. Defendant Cannot Make a Prima Facie Showing for Relief

As stated above, Senate Bill 775 amended section 1170.95, which now allows “[a] person convicted of . . . manslaughter [to] file a [resentencing] petition . . . to have the petitioner’s . . . manslaughter conviction vacated and to be resentenced on any remaining counts” when certain conditions apply. (Stats. 2021, ch. 551, § 2, subd. (a).) Senate Bill 775’s amendment of section 1170.95 applies retroactively to defendant because his case is not yet final on appeal. (See People v. Vieira (2005) 35 Cal.4th 264, 305.) Thus, under the amended statute’s plain terms, defendant’s conviction of voluntary manslaughter is no longer foreclosed from section 1170.95 relief.

Ordinarily, we would remand the matter for the trial court to reconsider defendant’s petition and determine whether he has stated a prima facie case. However, the record here demonstrates that defendant would not be able to establish a prima facie case for resentencing under Senate Bill 1437 and the recent amendments under Senate Bill 775. Under section 1170.95, a petitioner makes a prima facie showing that he is entitled to relief by demonstrating all of the following: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of . . . manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder. [¶] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)

In his supplemental brief, defendant asserts that he accepted a plea offer for voluntary manslaughter, in lieu of a trial where “he could have been convicted of murder on a felony-murder or a provocative act murder theory.” Thus, he contends that, under the plain language of section 1170.95, subdivision (a), he is entitled to relief. As noted ante, amended section 1170.95 authorizes a petition for resentencing by individuals convicted of murder under the felony-murder rule or the natural and probable consequences doctrine “or other theory under which malice is imputed to a person based solely on that person’s participation in a crime.” (§ 1170.95, subd. (a); see People v. Mancilla (2021) 67 Cal.App.5th 854, 866-867 (Mancilla).)

Contrary to defendant’s claim, he could not have been convicted of murder under the felony-murder doctrine. The parties concede that defendant’s brother was killed as a result of J.D. pushing him and causing him to fall on his own knife. “If the killing is not committed by the defendant or an accomplice, however, the felony-murder doctrine does not apply.” (People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez).) Given the parties’ concession in this case that the killing was not committed by the defendant or an accomplice, we determine that the felony-murder rule does not apply.

Furthermore, defendant correctly asserts that he could have been convicted of murder under a provocative act murder theory. “When someone other than the defendant or an accomplice kills during the commission or attempted commission of a crime, the defendant is not liable under felony-murder principles but may nevertheless be prosecuted for murder under the provocative act doctrine. The provocative act doctrine is to be distinguished from the felony-murder rule. ‘A provocative act murder case necessarily involves at least three people—in our case, the perpetrator of the underlying offense, an accomplice, and a victim of their crime. [Citation.]’ [Citation.] A variation on the law of transferred intent, the provocative act doctrine holds the perpetrator of a violent crime vicariously liable for the killing of an accomplice by a third party, usually the intended victim or a police officer.” (Gonzalez, supra, 54 Cal.4th at p. 654.) “A murder conviction under the provocative act doctrine thus requires proof that the defendant personally harbored the mental state of malice, and either the defendant or an accomplice intentionally committed a provocative act that proximately caused an unlawful killing.” (Id. at p. 655.)

In other words, “Supreme Court case law . . . makes clear a murder conviction under the provocative act doctrine requires proof the defendant ‘personally harbored the mental state of malice.’ [Citations.] That is, the defendant (or his or her accomplice) must have acted with implied malice—the defendant knew his or her conduct endangered the life of another and acted with conscious disregard for life.” (Mancilla, supra, 67 Cal.App.5th at p. 867; see Gonzalez, supra, 54 Cal.4th at p. 655.) Therefore, “section 188, subdivision (a)(3), which provides malice shall not be imputed to a person based solely on his or her participation in a crime, does not affect the theory of provocative act murder. Unlike natural and probable consequences liability for murder, which contained no requirement of proof of malice [citation], malice aforethought—conscious disregard for life—is a necessary element of a conviction for provocative act murder.” (Mancilla, supra, 67 Cal.App.5th at p. 868, italics added; see People v. Johnson (2020) 57 Cal.App.5th 257, 268-270.)

Based on the record, the only theory of murder available to the prosecution under the facts of this case was the provocative act murder theory, which requires that the defendant personally harbor the mens rea of malice. However, since neither Senate Bill 1437 nor the recent amendments under Senate Bill 775 had any effect on the prosecution’s ability to convict a defendant of murder under a provocative act theory, defendant cannot satisfy the prima facie requirement that he “could not presently be convicted of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3); see Mancilla, supra, 67 Cal.App.5th at p. 868.)

In sum, the court found defendant ineligible for relief because he was convicted of voluntary manslaughter. Although the law has changed since then, the record shows that defendant is ineligible for relief as a matter of law, even under Senate Bill 775. (See Mancilla, supra, 67 Cal.App.5th at pp. 865-868 [where the record shows that petitioner was not convicted under a theory of liability affected by section 1170.95 or the amendments to section 188 and 189, the petitioner is ineligible for relief as a matter of law].) We may affirm a ruling that is correct in law on any ground and will affirm the court’s order denying defendant’s petition. (See People v. Cortes (2022) 75 Cal.App.5th 198, 204.)

DISPOSITION

The trial court’s order denying defendant’s petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P.J.

MENETREZ

J.

[1] All further statutory references will be made to the Penal Code unless otherwise noted.

[2] The record on appeal contains the police report, but not the preliminary hearing transcript.