P.v. Misikei CA2/7

Filed 7/9/24 P.v. Misikei CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B328665

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. VA141024)

v.

PAUL DARVIS MISIKEI,

Defendant and Appellant.

APPEAL from an order of the Superior Court of

Los Angeles County, Debra Cole-Hall, Judge. Affirmed.

Richard B. Lennon, under appointment by the Court of

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorney General, Kenneth C. Byrne, Supervising

Deputy Attorney General, and Allison H. Chung, Deputy

Attorney General, for Plaintiff and Respondent.

INTRODUCTION

In 2019 Paul Misikei pleaded guilty to second degree

murder. In 2022 Misikei filed a petition for resentencing under

Penal Code section 1172.6.1 The superior court ruled Misikei

failed to state a prima facie case because he entered his plea after

Senate Bill No. 1437 modified the law governing accomplice

liability for murder. The court denied the petition without

issuing an order to show cause.

Misikei argues he stated a prima facie case because, after

he pleaded guilty, Senate Bill No. 775 expanded the scope of

legislative changes to the law governing accomplice liability for

murder by providing resentencing relief to defendants convicted

of attempted murder, voluntary manslaughter, and murder

under any “theory under which malice is imputed to a person

based solely on that person’s participation in a crime.” We

conclude that Misikei is ineligible for resentencing as a matter of

law because he pleaded guilty after January 1, 2019 and that

Senate Bill No. 775’s amendment to section 1172.6 did not apply

to him. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Misikei Pleads Guilty to One Count of Murder

In January 2016 police officers responded to a report of a

home invasion robbery at the home of Jim Rudometkin.2

1 Statutory references are to the Penal Code.

2 We provide a factual summary, based on the probation

officer’s report, for context only.

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A neighbor reported seeing three people running through his

back yard. Officers saw Misikei and another suspect jumping

over a wall. The officers detained Misikei and the other suspect,

and neighbors identified them as the people who forced their way

into Rudometkin’s home. Officers found Rudometkin inside his

home with his wrists and ankles bound and no pulse.

A codefendant, Sakaupo Folau, told police that he, Misikei,

and two others planned to steal a safe from Rudometkin’s home.

They knocked on the door, Rudometkin answered it, and Folau

grabbed him and placed him in a “bear hug.” Rudometkin went

limp and appeared to lose consciousness. Folau wrapped an

extension cord around Rudometkin’s ankles, and Misikei

wrapped an extension cord around Rudometkin’s upper torso.

Folau went upstairs and searched a room for valuables. When

the police arrived, the four men fled. The coroner’s department

found Rudometkin died of “hypertensive cardio vascular disease

(heart attack) coupled with blunt trauma due to being struck

multiple times and bound by ligature.”

In 2018 the People charged Misikei with one count of

murder (§ 187, subd. (a)), one count of robbery (§ 211), and one

count of first degree burglary (§ 459). The People alleged as a

special circumstance that Misikei committed the murder while he

was engaged in a robbery and residential burglary, within the

meaning of section 190.2, subdivision (a)(17). The People also

alleged Misikei committed the robbery while voluntarily acting in

concert with two or more other persons and within an inhabited

dwelling house, within the meaning of section 213,

subdivision (a)(1)(A). The People further alleged that, in

committing the robbery and burglary, Misikei personally inflicted

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great bodily injury, within the meaning of section 12022.7,

subdivision (a).

In October 2019 Misikei pleaded guilty to second degree

murder. The trial court dismissed the remaining counts and

allegations and sentenced Misikei to a prison term of 15 years to

life.

B. The Superior Court Denies Misikei’s Petition Under

Section 1172.6

In March 2022 Misikei filed a petition for resentencing

under former section 1170.95, now section 1172.6. The People

argued Misikei was ineligible for relief because he was convicted

after January 1, 2019, when Senate Bill No. 1437 became

effective. The People also argued that, even if section 1172.6

applied, Misikei was a major participant in a qualifying felony

and acted with reckless indifference to human life. In his reply

Misikei argued he was eligible for relief because he was convicted

before the effective date of Senate Bill No. 775, which amended

section 1172.6 effective January 1, 2022 to apply to individuals

convicted of attempted murder, voluntary manslaughter, and

“murder where malice was imputed based solely on their

participation in the underlying crime.”

The superior court denied Misikei’s petition. The court

ruled Misikei had not made a prima facie showing he was

entitled to relief because he pleaded guilty “after the law was

changed.” The court also stated Senate Bill No. 775 “didn’t

change anything as it relates to [Misikei’s] case.” Misikei timely

appealed.

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DISCUSSION

A. Applicable Law and Standard of Review

Effective January 1, 2019, Senate Bill No. 1437

substantially modified the law governing accomplice liability for

murder, eliminating the natural and probable consequences

doctrine as a basis for finding a defendant guilty of murder

(People v. Reyes (2023) 14 Cal.5th 981, 986; People v. Gentile

(2020) 10 Cal.5th 830, 842-843) and significantly narrowing the

felony-murder exception to the malice requirement for murder

(§§ 188, subd. (a)(3), 189, subd. (e); see People v. Curiel (2023)

15 Cal.5th 433, 448-449 (Curiel); People v. Strong (2022)

13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th 952,

957 (Lewis)). Section 188, subdivision (a)(3), now prohibits

imputing malice based solely on an individual’s participation in a

crime and requires proof of malice to convict a principal of

murder, except under the revised felony-murder rule in

section 189, subdivision (e). Section 189 requires the People to

prove that the defendant was the actual killer (§ 189,

subd. (e)(1)); that the defendant, though not the actual killer,

with the intent to kill assisted in the commission of the murder

(§ 189, subd. (e)(2)); or that the defendant was a major

participant in a felony listed in section 189, subdivision (a), and

“acted with reckless indifference to human life, as described in

subdivision (d) of Section 190.2,” the felony-murder special-

circumstance provision. (§ 189, subd. (e)(3); see Curiel, at p. 448;

Strong, at p. 708; Gentile, at p. 842.)

Section 1172.6 creates “a procedural mechanism for those

convicted of murder under prior law to seek retroactive relief.”

(People v. Wilson (2023) 14 Cal.5th 839, 869; see Curiel, supra,

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15 Cal.5th at p. 449.) If a section 1172.6 petition contains all the

required information, the court must appoint counsel to represent

the petitioner, if requested. (Lewis, supra, 11 Cal.5th at pp. 962-

963; see § 1172.6, subd. (b)(1)(A), (3).) The prosecutor must then

file a response to the petition, the petitioner may file a reply, and

the court must hold a hearing to determine whether the

petitioner has made a prima facie showing he or she is entitled to

relief. (§ 1172.6, subd. (c).)

In deciding whether a petitioner has made a prima facie

showing for relief under section 1172.6, “‘“the court takes

petitioner’s factual allegations as true and makes a preliminary

assessment regarding whether the petitioner would be entitled to

relief if his or her factual allegations were proved. If so, the court

must issue an order to show cause.”’” (Lewis, supra, 11 Cal.5th at

p. 971; see Curiel, supra, 15 Cal.5th at p. 460.) The court may

consider the record of conviction, which will “‘necessarily inform

the trial court’s prima facie inquiry under section [1172.6],

allowing the court to distinguish petitions with potential merit

from those that are clearly meritless.’” (Curiel, at pp. 463-464;

see People v. Williams (2022) 86 Cal.App.5th 1244, 1251.) “In

reviewing any part of the record of conviction at this preliminary

juncture, a trial court should not engage in ‘factfinding involving

the weighing of evidence or the exercise of discretion.’” (Lewis, at

p. 972; see People v. Eynon (2021) 68 Cal.App.5th 967, 975.)

“Nevertheless, the court may appropriately deny a petition

at the prima facie stage if the petitioner is ineligible for relief as a

matter of law. ‘“[I]f the record, including the court’s own

documents, ‘contain[s] facts refuting the allegations made in the

petition,’ then ‘the court is justified in making a credibility

determination adverse to the petitioner,’”’ thereby deeming the

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petitioner ineligible.” (People v. Harden (2022) 81 Cal.App.5th

45, 52; see Lewis, supra, 11 Cal.5th at p. 971.) We review de novo

an order denying a petition under section 1172.6 without issuing

an order to show cause. (Harden, at p. 52; People v. Coley (2022)

77 Cal.App.5th 539, 545.)

B. Misikei Is Ineligible for Relief Under Section 1172.6

Misikei argues the superior court erred in denying his

petition under section 1172.6 without issuing an order to show

cause. He contends he made a prima facie case because, although

he pleaded guilty to second degree murder after Senate Bill

No. 1437 became effective in 2019, he is entitled to relief under

Senate Bill No. 775’s amendments to section 1172.6, which did

not become effective until January 2022. Misikei’s argument is

meritless.

1. Section 1172.6 Does Not Authorize Resentencing

for Defendants Convicted After January 1, 2019

A defendant is eligible for resentencing under

section 1172.6 only if he “could not presently be convicted of

murder or attempted murder because of changes to [s]ection 188

or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(3).)

Misikei cannot satisfy this requirement because, while

represented by counsel, he pleaded guilty to second degree

murder in October 2019, nine months after the amendments in

Senate Bill No. 1437 to section 188 and 189 became effective.

Unlike a defendant who pleaded guilty to murder before

January 1, 2019, Misikei received the benefit of the new law.

Therefore, he cannot show he could not be convicted “because of

changes” to the law “made effective January 1, 2019.” (See

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People v. Reyes (2023) 97 Cal.App.5th 292, 299 [defendant who

pleaded no contest to murder in 2021 did “not qualify for

resentencing under section 1172.6,” was “not the type of

defendant this retroactive procedure was intended to benefit, and

any contrary interpretation of this statute would lead to absurd

results”]; see also Lewis, supra, 11 Cal.5th at p. 957

[section 1172.6 allows defendants “who could not be convicted

under the law as amended to retroactively seek relief”]; People v.

Berry-Vierwinden (2023) 97 Cal.App.5th 921, 936 [defendant

could not “establish that he ‘could not presently be convicted of

murder or attempted murder because of changes to Section 188 or

189’ made by Senate Bill No. 1437”].)

2. The 2022 Amendments to Section 1172.6 Do Not

Authorize Resentencing for Misikei

Acknowledging he pleaded guilty after the changes to

sections 188 and 189 became effective in 2019, Misikei argues he

is eligible for resentencing under the amendments to

section 1172.6 that became effective in 2022. This argument is

also meritless.

Effective January 1, 2022, Senate Bill No. 775 amended

former section 1170.95 (now section 1172.6) to apply not only to

defendants convicted of felony murder or murder under the

natural and probable consequences doctrine, but also to

defendants convicted of attempted murder, voluntary

manslaughter, or murder under any “other theory under which

malice is imputed to a person based solely on that person’s

participation in a crime.” (Former § 1170.95, subd. (a)

(Stats. 2021, ch. 551, § 2); see People v. Saibu (2022)

81 Cal.App.5th 709, 747; People v. Langi (2022) 73 Cal.App.5th

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972, 978.) Misikei argues he is eligible for resentencing under

the language Senate Bill No. 775 added to section 1172.6 that

extended eligibility for relief to defendants convicted of murder

under any “other theory under which malice is imputed.” He

contends “his plea was based on a charge which imputed malice

to him based on his involvement in an act undertaken by

multiple persons which resulted in the victim’s death.” This

argument fails for two reasons.

First, Senate Bill No. 775 left intact the requirement in

section 1172.6, subdivision (a)(3), that a defendant show he could

not now be convicted “because of changes to [s]ection 188 or 189

made effective January 1, 2019.” As discussed, Misikei cannot

meet that requirement because he pleaded guilty in

October 2019, nine months after those changes became effective.

Misikei asserts he could not be convicted because of “the change

in homicide law in 2022,” but Senate Bill No. 775 did not change

“2019” to “2022” in section 1172.6, subdivision (a)(3).

Second, Misikei does not provide any authority or rationale

for his contention he was convicted of murder on a “theory under

which malice is imputed to a person based solely on that person’s

participation in a crime,” within the meaning of section 1172.6,

subdivision (a). Courts have interpreted that language as

applying in cases where, although the trial court did not instruct

the jury on natural and probable consequences, ambiguities in

instructions on accomplice liability might have allowed the jury

to convict without finding the defendant personally acted with

malice. (See, e.g., People v. Lee (2023) 95 Cal.App.5th 1164, 1183

[ambiguity in the jury instructions might have allowed the jury to

convict the defendant under the provocative act doctrine by

finding a co-perpetrator intentionally committed a provocative

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life-threatening act, without finding the defendant personally

acted with malice];3 People v. Maldonado (2023) 87 Cal.App.5th

1257, 1266 [ambiguity in the jury instructions might have

allowed the jury to convict the defendant of aiding and abetting

murder by lying in wait by finding the defendant intended to

encourage a surprise attack, but not a killing]; People v. Langi,

supra, 73 Cal.App.5th at p. 984 [ambiguity in the jury

instructions might have allowed the jury to find the defendant

guilty of aiding and abetting second degree murder “by imputing

to him the implied malice of the actual killer, without finding

that he personally acted ‘with knowledge of the danger to, and

with conscious disregard for, human life’”].) Those cases have no

relevance to a case like this one, where the defendant pleaded

guilty rather than going to trial.

Misikei does not cite any cases applying the language

“other theory under which malice is imputed” that are similar to

this one. Instead, he cites three inapposite cases addressing the

meaning of “actual killer” for purposes of the felony-murder rule.

(See People v. Vang (2022) 82 Cal.App.5th 64, 90 [“While handing

a murder weapon to the person who actually kills the victim

might result in liability as an aider and abettor under

section 190.2, subdivision (c) or (d), it does not qualify as an act of

3 The Supreme Court granted review in People v. Antonelli

(2023) 93 Cal.App.5th 712, review granted Oct. 18, 2023,

S281599, to decide whether a defendant is entitled to

resentencing under section 1172.6 on the ground that malice

could be imputed to the defendant under the provocative act

theory of murder for convictions occurring before 2009 and

whether the superior court erred in not considering the jury

instructions in determining the defendant was ineligible for

resentencing as a matter of law for a provocative act murder.

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an ‘actual killer’ under section 190.2, subdivision (b).”]; People v.

Lopez (2022) 78 Cal.App.5th 1, 20 [the jury may have convicted

the defendant of felony murder if it found he “committed an act

that caused the victim’s death,” without finding the defendant

“personally killed the victim”]; People v. Garcia (2020)

46 Cal.App.5th 123, 152 [under section 190.2, subdivision (b), the

“actual killer is the person who personally kills the victim,

whether by shooting, stabbing, or—in this case—taping his

mouth closed, resulting in death by asphyxiation”].) This case

does not involve whether the petitioner is ineligible for relief

under section 1172.6 as the actual killer.

C. Any Error by the Superior Court in Relying on the

Preliminary Hearing Transcript Was Harmless

Misikei argues the superior court erred in relying on a

portion of the preliminary hearing transcript.4 Any error,

however, was harmless.

At the prima facie hearing, the superior court mentioned

statements the magistrate made at the preliminary hearing

regarding proximate cause and whether there was sufficient

evidence to hold Misikei to answer on the felony murder special

circumstance. The superior court stated that the trial court “did

go over” the factors in People v. Banks (2015) 61 Cal.4th 788 for

determining whether Misikei was a major participant in the

robbery and burglary, within the meaning of section 190.2, and

4 The Supreme Court will decide whether a superior court

engages in impermissible judicial factfinding by relying on a

preliminary hearing transcript to deny a section 1172.6 petition

at the prima facie stage. (People v. Patton (2023) 89 Cal.App.5th

649, review granted June 28, 2023, S279670.)

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that “there was a discussion regarding causation.” The superior

court also stated the preliminary hearing transcript reflected

that the magistrate “discussed the proximate cause issue.” The

superior court further stated that “the law is allowing people who

have pled to certain counts . . . an opportunity to address, if they

have been convicted based on the old law,” but that Misikei

pleaded guilty “after the law was changed” and that “in the

preliminary hearing they address the issues.”

Even if the superior court erred by relying on the

preliminary hearing transcript, the error was harmless. As

discussed, Misikei was ineligible for resentencing as a matter of

law because he pleaded guilty after January 1, 2019. Therefore,

Misikei cannot show it is reasonably probable that, absent any

error, the court would have issued an order to show cause. (See

Lewis, supra, 11 Cal.5th at pp. 957-958; People v. Watson (1956)

46 Cal.2d 818, 836; People v. Hurtado (2023) 89 Cal.App.5th 887,

893.)

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DISPOSITION

The order denying Misikei’s petition under section 1172.6 is

affirmed.

SEGAL, Acting P. J.

We concur:

FEUER, J.

STONE, J.

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