Summary
The California Court of Appeal held that a superior court lacked jurisdiction to resentence Bruce Millsap under Penal Code section 1172.75 while his capital judgment remained pending on automatic direct appeal before the California Supreme Court. The court concluded that holistic resentencing would interfere with the Supreme Court’s exclusive jurisdiction over the indivisible capital judgment. It also rejected Millsap’s challenge concerning his absence from the resentencing proceedings.
Topics
Practice areas
Questions Presented
- Whether a superior court has jurisdiction under Penal Code section 1172.75 to resentence a defendant whose capital judgment is pending before the California Supreme Court on automatic direct appeal.
- Whether conducting the section 1172.75 proceedings in defendant's absence violated his federal or state constitutional and statutory rights to be present.
- Whether appointed counsel rendered ineffective assistance by failing to secure defendant's presence at the resentencing hearings.
Holdings
- A superior court may not conduct holistic resentencing under section 1172.75 while a capital judgment is pending on automatic direct appeal in the California Supreme Court. The Supreme Court's exclusive constitutional appellate jurisdiction extends to the entire capital judgment, including noncapital convictions and sentences, and section 1172.75 does not clearly authorize interference with that jurisdiction.
- Even assuming defendant's federal and state constitutional rights to be present were violated, the error was harmless under both Chapman and Watson because the superior court correctly lacked jurisdiction to resentence and defendant's absence could not have affected the outcome.
- Counsel was not ineffective for failing to secure defendant's presence because defendant could not show prejudice from his absence at proceedings in which the trial court lacked jurisdiction to resentence.
Key quotations
“To the extent the Legislature vested concurrent 1172.75 resentencing jurisdiction pending appeal, that jurisdiction does not extend to a capital judgment on direct appeal.” (at 17)
“As discussed, the court correctly found it lacked the right or jurisdiction to conduct resentencing.” (at 18)
Factual background
A Los Angeles County jury convicted Bruce Millsap of eight first-degree special-circumstance murders and more than a dozen additional violent offenses in January 2000. He received eight death sentences and a consecutive noncapital term of more than 100 years to life, including a one-year prior-prison-term enhancement under former Penal Code section 667.5(b). While his automatic capital appeal remained pending in the California Supreme Court, the California Department of Corrections and Rehabilitation identified him as eligible for resentencing under Penal Code section 1172.75. The superior court held resentencing proceedings without Millsap present, declined to strike the enhancement or conduct holistic resentencing, and denied relief for lack of jurisdiction.
Procedural history
Millsap was convicted in 2000 of eight special-circumstance murders and numerous violent offenses and received eight death sentences plus a consecutive noncapital sentence exceeding 100 years to life, including a one-year prior-prison-term enhancement. While the automatic capital appeal remained pending, the superior court conducted section 1172.75 resentencing proceedings in Millsap's absence and concluded it lacked jurisdiction to modify the judgment. The Court of Appeal affirmed the postjudgment order.