People v. Miller CA6 ( 2023 )

Filed 1/19/23 P. v. Miller CA6
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048932
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 150722)
v.
EDWARD MILLER,
Defendant and Appellant.
In 1993, a jury convicted defendant Edward Miller of first degree felony murder
(Pen. Code, §§ 187, 189),1 robbery (§ 211), and kidnapping (§ 207), finding true the
felony-murder special circumstance allegations that the murder was committed during a
robbery and a kidnapping (former § 190.2, subd. (a)(17)(i), (ii))2 and the allegation that
defendant personally used a deadly or dangerous weapon during the commission of the
murder and the robbery (§ 12022, subd. (b)). The superior court sentenced defendant to
life without the possibility of parole. In 1994, this court affirmed the judgment in case
No. H011204.3
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
Currently section 190.2, subdivision (a)(17)(A) and (B).
3
We previously granted defendant’s request for judicial notice of this court’s
opinion in case No. H011204. (See Evid. Code, § 452.)
In 2021, defendant filed a petition for resentencing pursuant to former
section 1170.95 (now section 1172.6), which was enacted by the Legislature through its
passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). (Stats. 2018,
ch. 1015, § 4.) As relevant here, former section 1170.95 allowed individuals convicted of
felony murder to petition the superior court to vacate the conviction under recent changes
to the law that limited the scope of the felony murder rule to individuals who were major
participants in the underlying felony and acted with reckless indifference to human life.
The superior court denied the petition, determining that “readily ascertainable facts from
the record show [defendant] is ineligible for relief as a matter of law” based on the jury’s
felony-murder special circumstance findings and this court’s decision in the direct appeal
to uphold the findings despite an instructional error. In the direct appeal, this court
determined that there was “ample evidence that defendant participated in all aspects of
the underlying crimes, was a major participant in the murder, and acted with a reckless
indifference to human life,”4 such that the trial court’s failure to instruct the jury that it
must find defendant was a major participant in the underlying felony and acted with
reckless indifference to human life was harmless beyond a reasonable doubt.
Defendant contends that the superior court erred in denying his petition because it
relied on the record of conviction to deny the petition without first appointing him
counsel. Defendant also contends that the superior court erred in determining that
defendant was ineligible for relief as a matter of law because this court’s decision to
uphold the felony-murder special circumstance findings was rendered before the
California Supreme Court’s rulings in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
4
The felony-murder special circumstance statute required individuals who were
not the actual killer and did not act with the intent to kill to be major participants in the
underlying felony and act with reckless indifference to human life, as the statute does
today. (See former § 190.2, subd. (a)(17); § 190.2, subd. (a)(17), (d).)
2
People v. Clark (2016) 63 Cal.4th 522 (Clark), which construed the felony-murder
special circumstance statute.
We originally reversed the superior court’s order denying defendant’s former
section 1170.95 petition. The California Supreme Court granted review and held this
case pending its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong). After it
decided Strong, it remanded this case for reconsideration in light of Strong. The parties
now agree that reversal is required. We conclude that Strong requires us to reverse the
court’s order and remand with directions to appoint counsel and consider whether to issue
an order to show cause.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background5
“Defendant was convicted of murdering Gonzalo Romero, whose body was found
in the creek area behind San Jose High School on Saturday, October 27, 1990.
“The victim drove a catering truck for his brother, Rubin, who was in the
restaurant business. Gonzalo sold food, drinks, and cigarettes, driving a route which
targeted various business locations. After finishing his shift around 9 p.m. Friday,
October 26, Romero parked the catering truck at its warehouse/garage and drove his red
Chrysler LeBaron convertible to Rubin’s restaurant, where he turned over the day’s
proceeds. Gonzalo ordinarily withheld $100-$150 in coin and paper currency to be used
as change the following day. He kept this money in a cash box; at the end of the business
day, he would transfer the cash box to his own vehicle. He would also transfer to his own
car the business’s cigarette stock. This stock was typically replenished every evening
after work and consisted of 10-15 cartons of cigarettes, each carton containing 10
packages. On this particular evening, Gonzalo was wearing a distinctive and expensive
jeweled wristwatch.
5
We quote the facts stated in this court’s opinion in case No. H011204.
3
“Gonzalo spent several hours at his brother’s restaurant during which time he
drank a few beers and conversed with an acquaintance, Norberto Romero. At
approximately 1:30 a.m., Gonzalo left for home; the cash box and cigarettes were in his
car. Concerned that Gonzalo was either inebriated or too tired to drive, Norberto offered
to drive Gonzalo home. Gonzalo declined the offer, but Norberto followed the victim out
of concern for his safety. After turning onto 26th street, Gonzalo drove the Chrysler a
block or so and then parked at the curb near the intersection of 26th and St. James.
Norberto waited 20-30 minutes and then saw Gonzalo lie down inside the car. Norberto
approached the Chrysler and saw that Gonzalo had fallen asleep. Believing Gonzalo
would be safe, Norberto drove home at about 2:30 a.m.
“At approximately 7 a.m. Saturday morning, October 27, 1990, San Jose Police
Officer Kevin Fagalde was dispatched to 208 North 26th Street on a report of suspicious
circumstances. Upon his investigation, he saw large amounts of blood in and about the
driveway, sidewalk, and curb. The officer discovered a concrete cinder block covered
with blood and hair, as well as marks indicating that something or someone had been
dragged through the blood. The evidence he observed caused him to conclude that a
bloody struggle had occurred at the scene. Fagalde’s partner, Daniel Archie, saw similar
types of cinder blocks at a construction site across the street. He also noticed shoe prints
on the dirt yard area adjoining the construction site.
“Gonz[a]lo’s body was discovered later that morning about 9 a.m. by two teachers
who had met at San Jose High School for a game of tennis. When they pulled into the
school parking lot, they saw on the pavement a large pool of blood, a bloodied piece of
white cloth, and a line of blood that looked like heel marks from a dragged body. While
one teacher telephoned the police, the other followed the bloody heel marks into a nearby
creek gully where she discovered the victim’s body, which she described as ‘a bloody
white object.’
4
“Evidence at the 26th Street scene indicated that Gonzalo had been beaten with a
cinder block and dragged up the driveway to a fence, down the driveway to the street and
then along the street gutter. Along the way, there were numerous blood spatters which
indicated distinct beating sites. Hair and ‘medium velocity blood stains’ were found on a
cinder block at the scene. The latter term applies where the blood spatters or radiates
outward indicating that the loss of blood has been caused by force applied to the body
rather than natural bleeding. The cessation of drag marks in the gutter indicated that the
body had been loaded into a car at that point; the quantity of blood demonstrated that
Gonzalo was still alive when he was placed into the car. Based on the amount of blood
lost at the scene, however, investigating officers believed that only immediate
hospitalization could have saved the victim’s life.
“Police found two main areas of blood deposits at the high school indicative of
two separate beating sites. One of the sites contained a pool of liquid believed to have
been urine. Since urine is often released at time of death, it was theorized that this was
where Gonzalo had died. This theory was also supported by the absence of blood
between this point and the final resting place of the body some 100 feet away in the creek
gully. The lack of blood is significant because large amounts of blood are deposited only
when a circulatory system is functioning and can thus replenish blood supplies near the
site of a wound. A chunk of concrete found at the high school also contained medium
velocity blood stains.
“Defendant had spent the previous evening with James Lankford, Rickie Fultz,
and two other friends, one of whom was named Milton Paul. After driving around for
awhile, the men drove to a party across the street from the home of Lankford’s girlfriend.
Lankford remained at the party when the other men drove to a fast food restaurant located
at the intersection of King and Alum Rock. Fultz left the restaurant around 1 a.m. and
did not see defendant again until the following morning.
5
“At approximately 4 a.m., defendant rang the doorbell of Rita Franco’s home at
244 North 26th street; Franco’s home was located three to four houses away from the
bloody crime scene. Defendant was a friend of Franco’s son. When Franco told
defendant everyone was asleep, he smiled, said, “okay,” and then left. Franco did not
notice anything unusual about defendant’s manner or clothes. As defendant left, she saw
him approach the sidewalk; Franco did not hear anything out of the ordinary that
morning, nor did she hear any other voices or see anyone else in defendant’s company.
“Lankford spent the night at his girlfriend’s house near 33rd Street. While
walking home the next morning, he saw defendant dragging a white object near San Jose
High School. Defendant was alone. Defendant asked Lankford if he could get a change
of clothes at Lankford’s house and offered Lankford a ride. Afraid the red convertible
defendant was driving might be stolen, Lankford declined the ride. Shortly after
Lankford arrived home, however, defendant showed up with the red convertible. When
the two men then drove to a McDonald’s restaurant, Lankford noticed there were blood
stains in the car.
“At approximately 8:30 a.m., Saturday morning, Lankford telephoned Fultz; the
men then drove to Fultz’s apartment. Lankford changed clothes at Fultz’s house, a
practice which was not unusual as he and Fultz were good friends and often ‘swapped
clothes back and forth.’ Defendant also asked for a change of clothing. This was unusual
since defendant had never kept any clothes at Fultz’s house and he and Fultz were not in
the habit of exchanging clothes. Fultz lent defendant a T-shirt and some socks. Fultz
told defendant to put his dirty clothes in the closet, but instead defendant threw his socks
into the garbage. The police later found a pair of socks and some shorts in the trash
outside the apartment. The socks were splattered with the victim’s medium velocity
blood stains.
“At some point, Milton Paul also arrived at Fultz’s apartment. Around 9:30 a.m.,
the four men drove off in the red convertible. As they left, Paul remarked that there was
6
blood in the car. Defendant replied that it was ‘ketchup’ and ‘bird shit.’ Fultz saw ‘a
bunch of boxes of cartons of cigarettes’ inside the car in a small box. Lankford saw a
cash box in the car, and also noticed that defendant was wearing a jeweled watch
Lankford had never seen before. Later that morning, Fultz saw defendant selling
packages of cigarettes at Roosevelt Park. Defendant said he had given a Mexican friend
four rocks of cocaine in exchange for the car.
“Meanwhile, the police had secured the crime scene at the high school and were in
the process of collecting evidence. At about 3:20 p.m. that afternoon, Roberta Wehrfritz
and her husband were driving near the high school behind a red Chrysler convertible
when they saw four young black men leap from the moving car. Defendant jumped over
the bridge railing; Lankford and Fultz walked home after escaping from the car. The
empty vehicle crashed into the concrete wall of the bridge which traversed the nearby
creek; the vehicle came to a halt after striking a cyclone fence. Mrs. Wehrfritz later
identified defendant as one of the individuals who had jumped from the car.
“Later that afternoon, Fultz approached an off-duty San Jose Police Officer who
was working a security shift at San Jose Medical Center. By this time, Fultz believed
defendant had stolen the car and was also fearful a murder might have been committed.
Afraid he might be implicated in defendant’s criminal conduct, Fultz told the officer
about defendant and the car, including its appearance and contents. At that point,
Wehrfritz was transported to the hospital where she identified Fultz as one of the men
who had fled from the car. Later that afternoon, Fultz led the police to Lankford’s house
where Lankford was arrested.
“In the meantime, after observing the abandonment of the red convertible, police
officers had begun a search along the creek bed and adjacent streets. Over a period of
several hours, defendant led police officers on a lengthy chase. During this period, police
received reports of numerous sightings from residents. At one point, defendant was
discovered hiding underneath someone’s bed and was chased by the occupant through the
7
streets into another home. The police eventually surrounded the home and entered with a
pair of police dogs. When they did so, defendant jumped through a glass window after
which he was attacked and bitten by a police dog. Defendant was then placed under
arrest.
“Police found the victim’s watch in defendant’s pants pocket; they also found a
package of cigarettes and one dime in defendant’s possession. Defendant was not
wearing socks or shoes. However, a pair of shoes later found in the creek area appeared
to be the same size and to have the same ribbing pattern as those which caused the prints
found in the blood. The shoes were similar to those which the defendant had been
wearing. No blood was found on the shoes. However, if the perpetrator had run along a
creek bed, fresh blood stains on the shoes would have been washed away by the water.
“An autopsy revealed that Gonzalo had been killed by numerous severe blows to
the head. The blows were inflicted with a blunt instrument while the victim was still
alive. The victim had sustained multiple skull fractures, had a gaping three-by-five-inch
wound on the left side of his head, had suffered two-inch lacerations on his forehead and
right eyebrow and had also sustained fractures to the jaw and teeth. The blunt instrument
wounds were consistent with the use of a cinder block and pieces of concrete such as
were found at the 26th Street scene and the high school.
“Gonzalo also had wide chest and back abrasions which were consistent with his
having been dragged; these abrasions were inflicted while he was still alive. The autopsy
also revealed numerous ‘defense wounds’ on the victim’s arm and neck lacerations, both
of which had been inflicted by a sharp instrument. These wounds were consistent with a
drywall knife found at the 26th Street site. At the time of his death, the victim had a
blood alcohol content of .10 percent.
“An examination of the Chrysler revealed blood stains on the passenger seat, door,
console, and trunk. The blood stains demonstrated that the victim had been slumped in
8
the passenger seat, and had also been placed in the trunk. Some of these blood stains also
contained hair. Blood on the wristwatch and knife matched that of the victim.
“Inside the car, officers found a metal cash box containing coins in the amount of
$14.90; the rest of the money was missing. A wooden display box containing cigarette
cartons was also found in the car along with a baggie of marijuana.
“The defense called several witnesses who lived near the 26th street scene and had
heard the sound of a car and/or two or more people talking or arguing between midnight
and 4 a.m. Saturday morning. One witness testified she heard someone yell, ‘Let’s take it
to San Jose High.’
“After being individually questioned at the police station, defendant, Fultz, and
Lankford were confined in or near the same jail cell. While in jail, Fultz heard Lankford
complaining about the trouble they were in and asking why defendant had gotten him into
that situation. Fultz overheard defendant tell Lankford that he had hit ‘the guy’ once with
a brick but that ‘Ice’ had killed the victim; defendant went on to state that Lankford knew
Ice. Fultz and Lankford testified they knew of no such person. Lankford’s trial
testimony was evasive. However, when pressed, he indicated defendant had said
something about ‘hit[ting] the man once with a rock, and somebody else [doing] the rest
of the killing.’ He remembered defendant saying something about kicking someone or
something. Lankford testified that defendant fell asleep during the conversation.
“The police tried to locate ‘Ice,’ but were unable to find any such person.”
B. Procedural History
1. Trial Proceedings
A jury convicted defendant of first degree felony murder, robbery, and
kidnapping, finding true the felony-murder special circumstance allegations that the
murder was committed during a robbery and a kidnapping and the allegation that
defendant personally used a dangerous and deadly weapon, i.e., a knife, cinder block, and
9
pieces of concrete, during the commission of the murder and the robbery. The superior
court sentenced defendant to life without the possibility of parole.
2. Direct Appeal
This court affirmed the judgment in 1994. Among other issues, this court
determined that the trial court’s failure to instruct the jury that the felony-murder special
circumstance allegations, if predicated on an aiding and abetting theory, required a
finding that defendant was a major participant in the underlying felony and acted with
reckless indifference to human life was harmless beyond a reasonable doubt based on the
“overwhelming evidence of defendant’s guilt.”
3. Former Section 1170.95 Proceedings
In 2021, defendant filed a former section 1170.95 petition in the superior court.
As relevant here, the handwritten petition stated that “[a] complaint, information, and/or
indictment was filed against [him] that allowed the prosecution to proceed under a theory
of felony murder [or] under the natural and probable consequences doctrine”; “[a]t trial,
[he] was convicted of first degree murder pursuant to the felony murder rule and/or the
natural and probable consequences doctrine”; and he “could not now be convicted of first
degree murder because of changes made to . . . sections 188 and 189, effective January 1,
2019.” In addition, defendant stated that he was not the actual killer and the victim was
not a peace officer in the performance of his or her duties. Defendant requested counsel.
The superior court denied the petition. Following this court’s decision in People
v. Drayton (2020) 47 Cal.App.5th 965, 975-976, overruled in part by People v. Lewis
(2021) 11 Cal.5th 952, 957 (Lewis), the superior court performed an initial review to
determine defendant’s eligibility for relief before appointing counsel or requesting
briefing. Relying on this court’s opinion in the direct appeal, the superior court
determined that defendant was ineligible for former section 1170.95 relief as a matter of
law based on this court’s finding that there was ample evidence that defendant
participated in all aspects of the underlying crimes, was a major participant in the murder,
10
and acted with reckless indifference to human life such that the trial court’s instructional
error on the felony-murder special circumstance allegations was harmless beyond a
reasonable doubt.
II. DISCUSSION
Defendant contends that the trial court erred in concluding that this court’s 1994
conclusion that the jury’s 1993 felony-murder special circumstance findings were valid
precluded him from making a prima facie showing of eligibility for relief. He further
argues that the trial court erred by failing to appoint counsel and obtain briefing before
denying his petition. The Attorney General concedes that the trial court erred in denying
the petition.
This court originally reversed the trial court’s ruling, and the California Supreme
Court granted review and held this case pending its decision in Strong, supra, 13 Cal.5th
698. After the California Supreme Court issued Strong, it remanded this case for
reconsideration in light of Strong. Defendant filed a supplemental brief arguing that
Strong requires reversal of the trial court’s order, and the Attorney General conceded.
We conclude that the trial court’s order must be reversed.
In Strong, the California Supreme Court held that a felony-murder special
circumstance finding made prior to its decisions in Banks and Clark does not
categorically preclude a defendant from making a prima facie showing of eligibility for
relief under section 1172.6. (Strong, supra, 13 Cal.5th at p. 720.) “Section 1172.6
offers resentencing for petitioners who have not been determined beyond a reasonable
doubt to have the degree of culpability now required for a murder, attempted murder, or
manslaughter conviction. Neither the jury’s pre-Banks and Clark findings nor a court’s
later sufficiency of the evidence review amounts to the determination section 1172.6
requires, and neither set of findings supplies a basis to reject an otherwise adequate prima
facie showing and deny issuance of an order to show cause.” (Ibid.)
11
In this case, this court’s 1994 conclusion that the jury’s 1993 felony-murder
special circumstance findings were valid occurred before the California Supreme Court’s
rulings in Banks and Clark in 2015 and 2016. Hence, neither this court’s 1994
conclusion nor the jury’s 1993 findings precluded defendant from making a prima facie
showing in support of a section 1172.6 petition. (Strong, supra, 13 Cal.5th at p. 721.)
Consequently, the trial court erred in denying defendant’s petition on this basis.
III. DISPOSITION
The trial court’s order is reversed, and the matter is remanded with directions to
appoint counsel, consider issuing an order to show cause, and conduct further
proceedings in accordance with Penal Code section 1172.6.
12
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
LIE, J.
WILSON, J.
People v. Miller
H048932