Filed 3/7/22 P. v. Cummings CA2/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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. Reversed and 

remanded.

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, and Allison H. Chung, Deputy 

Attorney General, for Plaintiff and Respondent.
2

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 initially 

affirmed, but our Supreme Court granted review and transferred 

the matter back to us with instructions to vacate our opinion and 

reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th 

952 (Lewis). Our prior opinion is hereby vacated, and the 

dispositive question that we now decide is whether the failure to 

appoint counsel for defendant was harmless.

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 (former § 12034, subd. (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 

1 Undesignated statutory references are to the Penal Code.
3

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 

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 

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; 
4

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 

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 

and [¶] 3. The perpetrator, at the time he discharged the firearm, 

intended to inflict death.”
5

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] 

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.
6

“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 

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.
7

II. DISCUSSION

People v. Lewis holds a trial court must appoint counsel for 

a section 1170.95 petitioner upon the mere filing of a facially 

sufficient petition. (Lewis, supra, 11 Cal.5th at 957; see also 

section 1170.95, subd. (b)(3).) That was not done here, and under 

Lewis, we accordingly confront undisputed error. The only 

question, therefore, is whether the error was harmless. The test 

for that is whether defendant has demonstrated a reasonable

probability that in the absence of the error (i.e., the failure to 

appoint counsel) he would have obtained a more favorable result. 

(Id. at 974.) We believe this reasonable probability exists here 

and requires a remand. (People v. Watson (1956) 46 Cal.2d 818, 

836-837 [probability does not mean more likely than not, but 

merely a reasonable chance, something more than an abstract 

possibility]; see also People v. Beck and Cruz (2019) 8 Cal.5th 

548, 668.) Although the impact appointed counsel might make 

can be difficult to judge counterfactually, we are persuaded there 

is a reasonable chance counsel can fashion arguments

(particularly concerning the permissible use of this court’s prior 

opinion on direct appeal) or proffer new evidence that may lead to 

a more favorable result. We briefly explain.

The Attorney General’s argument for affirmance on 

harmlessness grounds relies heavily on conclusions another panel 

of this court drew in resolving defendant’s direct appeal over 20 

years ago. If counsel were appointed for defendant, however, 

counsel has available arguments, with a reasonable chance of 

succeeding, that such reliance is not proper—at least at the 

prima facie stage of section 1170.95 consideration. (See, 

e.g., § 1170.95, subd. (d)(3) [“The court may also consider the 

procedural history of the case recited in any prior appellate 
8

opinion”], italics added; Lewis, supra, 11 Cal.5th at 972 

[“Appellate opinions . . . are generally considered to be part of the 

record of conviction. (See People v. Woodell (1998) 17 Cal.4th 

448, 454-455[ ].) However, as we cautioned in Woodell, the 

probative value of an appellate opinion is case-specific, and ‘it is 

certainly correct that an appellate opinion might not supply all 

answers’”].) In light of recent changes in the law made by Lewis

and Senate Bill No. 775 (2020-2021 Reg. Sess.) (which amended 

section 1170.95, subdivision (d)(3) as quoted above), the Attorney 

General’s related preclusion and law of the case arguments are 

not well taken. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 

94; People v. Berg (2019) 34 Cal.App.5th 856, 875, fn. 20.) In 

addition, defendant, with the benefit of appointed counsel, has a 

reasonable chance of availing himself of the provision in section 

1170.95 that allows a petitioner to come forward with new 

evidence not introduced during trial. (§ 1170.95, subd. (d)(3); see 

also People v. Murillo (2020) 54 Cal.App.5th 160, 173, review 

granted Nov. 18, 2020, S264978 [“If as a matter of law the record 

of conviction shows . . . that the defendant was a major 

participant who acted with reckless indifference to human life, 

and the defendant does not claim he has new evidence to present, 

he has not made a prima facie case”], italics added.)

With these recent changes in the law, we lack the requisite 

confidence that failure to appoint counsel for defendant, and 

summary denial of the petition at the prima facie consideration 

stage, was harmless. We express no view on whether defendant’s 

request for section 1170.95 relief should ultimately carry the day. 

We hold only that a remand is required to permit appointment of 

counsel for defendant and further proceedings contemplated by 

section 1170.95.
9

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

reversed and the cause is remanded with directions to appoint 

counsel for defendant, to permit the filing of an amended section 

1170.95 petition if appointed counsel so chooses, and to conduct 

further proceedings consistent with section 1170.95, subdivision 

(c).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

I concur:

RUBIN, P. J.
People v. Cummings

B299490

MOOR, J., Concurring

Having considered the arguments included by the parties 

in their briefs and supplemental letter briefs, I agree with the 

majority opinion that the correct disposition is to remand the 

matter to the trial court for appointment of counsel and further 

proceedings. I do not join in all the particulars of the majority 

opinion’s analysis.

MOOR, J.