People v. Miller CA2/4 ( 2021 )

Filed 9/23/21 P. v. Miller CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B310290
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. MA049065)
v.
WILLIAM PHILLIP MILLER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Daviann L. Mitchell, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant William Phillip Miller appeals from a postconviction
order denying his request to reduce his sentence by striking a one-year
prior prison enhancement (Pen. Code, § 667.5, subd. (b)).1 Appellant
had admitted the prior as part of a negotiated plea, but it has since
been re-designated a misdemeanor under Proposition 47. His appellate
counsel filed a brief asking this court to proceed under People v. Serrano
(2012) 211 Cal.App.4th 496 (Serrano). Consistent with Serrano, we
dismiss the appeal as abandoned, as neither appellant nor his
appointed counsel has raised any claim of error.
BACKGROUND AND DISCUSSION
In July 2010, appellant was charged with attempted willful
premeditated murder (§§ 664/187, subd. (a), count 1), assault with a
deadly weapon (§ 245, subd. (a)(1), count 2), felony hit and run driving
(Veh. Code, § 20001, subd. (a), count 3), grand theft auto (§ 487, subd.
(d)(1), counts 4 and 5), evading a pursuing police officer (Veh. Code,
§ 2800.2, subd. (a), count 6), and possession of a controlled substance
(Health & Saf. Code, § 11377, subd. (a), count 7). On counts 1 through
3, the information alleged that appellant had inflicted great bodily
injury (§ 12022.7, subd. (a)). As to all counts, six prior prison terms
were alleged (§ 667.5, subd. (b)).
In September 2010, appellant entered a negotiated disposition in
which he pleaded no contest to assault with a deadly weapon (count 2),
1 Subsequent references to statutes are to the Penal Code unless
otherwise indicated.
2
and felony hit and run driving (count 3). Appellant also admitted to
inflicting great bodily injury, and having suffered five prior prison
terms, including one conviction in 2006 for burglary.2 Prior to
sentencing, appellant sought to withdraw his plea in a motion in which
he alleged his former attorney was ineffective for misadvising him on
his exposure to terms of imprisonment if he did not enter into a plea
agreement. The trial court denied the motion, and we affirmed the trial
court’s order. (See People v. William P. Miller (Feb. 23, 2012, B231365)
[nonpub. opn.].)
In 2011, appellant was sentenced to an overall term of 12 years
imprisonment, consisting of four years for assault with a deadly
weapon, plus three years for inflicting great bodily injury, and five
years for the prison priors.3 Pursuant to the plea negotiation, the court
dismissed counts 1, and 4 through 7.
Following Proposition 47’s enactment in November 5, 2014 (see
People v. Valencia (2017) 3 Cal.5th 347, 368), appellant filed an
application in 2016 to re-designate his 2006 felony burglary conviction a
misdemeanor shoplifting conviction (§ 459.5). Proposition 47 added
section 1170.18, which reduced punishment for specific drug and theft
2 Appellant also admitted to suffering convictions between 2004 and
2008 for possession for sale a controlled substance (Health & Saf. Code,
§ 11378), possession of a controlled substance while armed with a firearm
(Health & Saf. Code, § 11370.1), attempted receipt of stolen property (§ 496,
subd. (d)), and felon in possession of a firearm (former § 12021).
3 Appellant was also sentenced to a concurrent term of 16 months
imprisonment for hit and run driving.
3
offenses from straight felonies and wobblers to misdemeanors. (People
v. Bush (2016) 245 Cal.App.4th 992, 1000.) The court granted
appellant’s application.
On July 30, 2020, appellant filed a “Proposition 47 Motion
Application/Petition for Resentencing . . . § 1170.18 (a) & (f).” Appellant
requested that his current felony sentence be recalled and that he be
resentenced pursuant to section 1170.18 in light of the court’s prior
order re-designating his 2006 conviction a misdemeanor. The court
denied the application in August 2020, ruling that neither of appellant’s
current convictions (assault with a deadly weapon and felony hit and
run) were eligible for Proposition 47 relief.
By letter dated October 6, 2020, appellant requested that the
court “reduc[e] [his] release date” based on the court’s prior re-
designation of his 2006 conviction to a misdemeanor, which was used to
impose an additional one-year term of imprisonment under section
667.5, subdivision (b). The court denied appellant’s second request,
noting that it lacked jurisdiction to modify appellant’s sentence, which
had been deemed final before the change in law.4 Appellant timely
appealed.
Appellant’s appointed counsel filed a brief raising no issues and
invoking Serrano, supra, 211 Cal.App.4th 496. Under Serrano, when
4 Several clerical errors appear in the court’s order. The order states
that appellant was convicted in 2016. But appellant was convicted in this
case in 2010, and was serving a term of imprisonment based in part on his
2006 burglary conviction. The order also references Senate Bill No. 136,
which was not raised by appellant in his application or request, and is not at
issue in this appeal.
4
appointed counsel raises no issues in an appeal from an order denying
post-judgment relief, an appellate court need not independently review
the record. (Id. at p. 498; accord, People v. Scott (2020) 58 Cal.App.5th
1127, 1130–1131, rev. granted Mar. 17, 2021, S266853.) On May 7,
2021, we directed counsel to send the record and a copy of the brief to
appellant, and notified appellant of his right to file a supplemental brief
within 30 days. We have received no supplemental brief.
Because neither appellant nor his appointed counsel has raised
any claim of error, we dismiss the appeal as abandoned. (See Serrano,
supra, 211 Cal.App.4th at pp. 503–504; People v. Kisling (2015) 239
Cal.App.4th 288, 292, fn. 3.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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