Filed 12/1/20 P. v. Miller CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

TYRONE MILLER et al.,

Defendants and Appellants.

 B297558

 (Los Angeles County

 Super. Ct. No. BA226937)

APPEAL from orders of the Superior Court of Los Angeles 

County, George G. Lomeli, Judge. Reversed and remanded.

Leslie Conrad, under appointment by the Court of Appeal, 

for Defendant and Appellant Tyrone Miller.

Daniel G. Koryn, under appointment by the Court of 

Appeal, for Defendant And Appellant Derrick Patton.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, Amanda V. Lopez and Kathy S. 

Pomerantz, Deputy Attorneys General, for Plaintiff and 

Respondent.
3

A jury convicted defendants and appellants Derrick Patton 

(defendant Patton) and Tyrone Miller (defendant Miller) of first 

degree felony murder. Following enactment of Senate Bill No. 

1437 (Senate Bill 1437), defendants separately filed uncounseled

petitions for resentencing pursuant to Penal Code section 

1170.95.1 The trial court denied their petitions without first 

appointing counsel, and we consider whether either defendant is 

eligible to have his murder conviction vacated in light of the 

changes worked by Senate Bill 1437.

I. BACKGROUND

Defendants and Melvin Tate (Tate) were members of the 4-

Deuce Crips street gang and they had participated in a number of 

“follow-home” robberies as part of the gang’s activities. (In re 

Miller (2017) 14 Cal.App.5th 960, 964.) These robberies were 

conducted in a similar fashion: a “spotter” would go into a bank, 

locate a person withdrawing a large amount of cash, and identify 

that person for the others involved in committing the robbery; the 

“driver” would tail the victim to his or her destination; and the 

“getter” would take the money. (Ibid.) 

In May 2000, defendants met Tate at his residence and 

planned a follow-home robbery that led to the murder convictions

at issue in this appeal; defendant Miller would serve as the 

spotter, defendant Patton the driver, and Tate the getter. (In re 

Miller, supra, 14 Cal.App.5th at 965.) When they later put their 

plan into practice, defendant Miller spotted Ana Saravia 

(Saravia) withdrawing $7,500 at a bank while accompanied by 

1 Undesignated statutory references that follow are to the 

Penal Code.
4

Rene Franco (Franco). (Ibid.) After Saravia and Franco exited 

the bank, defendant Miller instructed defendant Patton and Tate 

to follow them, advising Saravia had a lot of money in her purse. 

(Ibid.) 

Defendant Patton and Tate tailed Saravia and Franco to a 

car dealership. (In re Miller, supra, 14 Cal.App.5th at 965.) 

Defendant Patton handed Tate a loaded pistol and told him, 

“[m]ake sure you get the purse.” (Ibid.) Tate approached Franco 

and Saravia, grabbed Saravia’s purse, and knocked her to the 

ground. (Ibid.) When Franco moved to intervene, Tate shot him 

in the chest, killing him. (Ibid.) Defendant Patton and Tate 

drove off and later rendezvoused at defendant Miller’s home,

where the three men divided the $7,500 they stole from Saravia. 

(Ibid.) 

A jury found defendants guilty of murdering Franco. (In re 

Miller, supra, 14 Cal.App.5th at 965.) The jury also found true

an allegation that the killing occurred in the commission of a 

robbery within the meaning of section 190.2, subdivision 

(a)(17)(A)—a “special circumstance” that required a sentence of 

life in prison without the possibility of parole (§ 190.2, subd. (d)). 

That is the sentence the trial court imposed (plus additional 

prison terms for certain other allegations the jury found true).

2

 

(Id. at 965-966.) This court affirmed the convictions on direct 

appeal in a 2003 opinion. 

2 Section 190.2, subdivision (d) states “every person, not the 

actual killer, who, with reckless indifference to human life and as 

a major participant,” aids, abets, or assists in a robbery that 

results in the death of some person or persons and is found guilty 

of first degree murder shall be punished by death or life in prison 

without the possibility of parole.
5

More than a decade later, following our Supreme Court’s 

decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and 

People v. Clark (2016) 63 Cal.4th 522 (Clark) that explain when a 

felony murder aider and abettor may be sentenced to life in 

prison without the possibility of parole, defendant Miller

petitioned for a writ of habeas corpus in this court. We granted 

the petition and vacated the special circumstance true finding

against him.

3

(In re Miller, supra, 14 Cal.App.5th at 966-967

[“[T]he evidence against defendant [Miller] would not permit a 

jury to rationally conclude he exhibited a reckless indifference to 

human life”].) In 2017, Defendant Patton also sought habeas 

corpus relief in this court, similarly relying on Banks and Clark, 

but we summarily denied his petition.

Most recently, and key for purposes of this appeal, 

defendants separately filed section 1170.95 petitions for 

resentencing pursuant to newly enacted Senate Bill 1437, which 

“amend[ed] 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 is 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).) 

The trial court denied both petitions without appointing 

counsel for defendants and without soliciting opposition from the 

People. As to defendant Miller, the court recognized he was 

3 The superior court later resentenced defendant Miller to 25 

years to life for murder under section 187, subdivision (a) plus 25 

years to life for a firearm enhancement under section 12022.53, 

subdivision (d). 
6

“seemingly” entitled to relief under the provisions added to the 

Penal Code by Senate Bill 1437, but the court concluded Senate 

Bill 1437 was unconstitutional and denied his petition on that 

basis. The trial court likewise denied defendant Patton’s section 

1170.95 petition on constitutional grounds, but the court also

found, in the alternative, that defendant Patton was ineligible for 

relief because he was a “major participant [in the crime] who 

acted with reckless indifference.”

II. DISCUSSION

The trial court denied defendants’ section 1170.95 petitions 

because the court believed Senate Bill 1437 is unconstitutional. 

That is wrong. (See, e.g., People v. Bucio (2020) 48 Cal.App.5th 

300; People v. Solis (2020) 46 Cal.App.5th 762, 769 [“Senate Bill 

No. 1437 addresses the elements of the crime of murder and is 

directed to the mental state and conduct of those accused of 

murder. [Citation.] It does not authorize anything [two voterapproved] initiatives prohibited, nor prohibit anything they 

authorized”]; People v. Cruz (2020) 46 Cal.App.5th 740; People v. 

Superior Court (Gooden) (2020) 42 Cal.App.5th 270; People v. 

Lamoureux (2019) 42 Cal.App.5th 241, 246 [“[W]e conclude the 

resentencing provision of Senate Bill 1437 does not contravene 

separation of powers principles or violate the rights of crime 

victims”].) We need say no more about that.

More does need to be said, however, about defendants’ 

statutory eligibility for relief. The bottom line is that reversal is 

required because neither defendant is ineligible for section 

1170.95 relief as a matter of law.

That is obvious when it comes to defendant Miller, as to 

whom this court has already reached a post-Banks and Clark
7

conclusion that he did not act with reckless indifference to human 

life. (Miller, supra, 14 Cal.App.5th 975 [“[W]e are convinced the 

evidence was insufficient to show defendant [Miller] acted with a 

reckless indifference to human life”].) As the Attorney General 

concedes, that post-Banks and Clark finding means he is entitled 

to resentencing under section 1170.95 without further ado. 

(§ 1170.95, subd. (d)(2) [“If there was a prior finding by a court or 

jury that the petitioner did not act with reckless indifference to 

human life or was not a major participant in the felony, the court 

shall vacate the petitioner’s conviction and resentence the 

petitioner”]; see also People v. Ramirez (2019) 41 Cal.App.5th 

923, 932-933.)

The conclusion that reversal is required is less obvious as 

to defendant Patton, given his apparent role in Franco’s killing 

(handing the murder weapon to the actual killer at the scene of 

the crime) and our summary denial of his prior habeas petition 

(although that is not law of the case (see generally Gomez v. 

Superior Court (2012) 54 Cal.4th 293, 305, fn. 6)). But obvious or 

not, the conclusion still obtains. Defendant Patton’s eligibility 

turns on an evidentiary assessment of whether he was a major 

participant who acted with reckless indifference to life and—

critically—such an assessment can be made only after counsel is 

appointed for defendant Patton and has an opportunity to proffer 

additional evidence, beyond the existing record of conviction, that 

might alter an assessment of his role in Franco’s killing. (People 

v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 

2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 92, 

review granted Jul. 22, 2020, S262835 [“If . . . a determination of 

eligibility requires an assessment of the evidence concerning the 

commission of the petitioner’s offense, the trial court must 
8

appoint counsel and permit the filing of the submissions 

contemplated by section 1170.95”]; id. at 96 [“[W]e cannot say at 

this stage of the proceedings that failure to appoint counsel was 

harmless ‘given the trial evidence’; by the express terms of 

section 1170.95, subdivision (d)(3), counsel is not limited to the 

trial evidence”]; 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.) Of 

course, if such an evidentiary proffer is not forthcoming (or if it is,

but still does not defeat a conclusion that defendant Patton is 

ineligible for relief as a matter of law), then the trial court will be 

justified in denying defendant Patton’s section 1170.95 petition

without issuing an order to show cause.
9

DISPOSITION

The orders denying defendants’ section 1170.95 petitions 

are reversed. The trial court is directed to vacate defendant 

Miller’s murder conviction and resentence him consistent with 

section 1170.95, subdivisions (a) and (d)(2). The trial court is 

directed to appoint counsel for defendant Patton and thereafter 

proceed as required by section 1170.95, subdivision (c).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.