People v. Miller CA1/2 ( 2015 )

Filed 7/28/15 P. v. Miller CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A144870
v.
BENJAMIN AUSTIN MILLER, (Lake County
Super. Ct. No. CR933512)
Defendant and Appellant.
Defendant Benjamin Austin Miller pled no contest to one count of assault by
means likely to produce great injury and admitted one of his prior prison term allegations
for a stipulated sentence of five years in state prison. He has now petitioned to be
resentenced and have his offense reclassified as a misdemeanor pursuant to Penal Code
section 1170.18, subdivision (a), commonly known as Proposition 47.1 This is an appeal
from the trial court’s order denying the petition. Defendant’s court-appointed counsel
has filed a brief seeking our independent review of the record, pursuant to People v.
Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for
review. Defendant has also been informed of his right to file supplemental briefing, and
1
“On November 4, 2014, the voters enacted Proposition 47, ‘the Safe
Neighborhoods and Schools Act’ (hereafter Proposition 47), which went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089 (Rivera).) Penal Code section 1170.18 “was enacted as part of
Proposition 47.” (Rivera, at p. 1089.) All further statutory references are to the Penal
Code.
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he has not done so. After our independent review of the record, we find no errors or
other issues requiring further briefing, and we affirm.
Defendant was charged with one count of residential burglary (§ 459), two counts
of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and one
count of unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1)). The
information also alleged that defendant had served two prior prison terms (§ 667.5). As
to the burglary charge, there were allegations that it was a serious felony (§ 1192.7, subd.
(c)), a violent felony (§ 667.5, subd. (c)), defendant had a previous strike conviction
(§ 667, subd. (b)-(i)), and a previous conviction of a violent felony (§ 667.5, subd. (a).)2
Defendant pled no contest to one count of assault by means likely to produce great
bodily injury and admitted one of the prior prison term allegations, pursuant to a
negotiated disposition that included a stipulated sentence of five years in state prison.
The prosecutor dismissed the remaining charges in the information as part of the
negotiated disposition, and defendant entered a Harvey3 waiver as to the dismissed
assault charge. Defendant signed a seven-page document entitled “Plea Form, With
Explanations and Waiver of Rights,” which was also signed by his counsel and the
prosecutor, and accepted by the trial judge. At the change of plea hearing, the judge
engaged in voir dire of defendant, and accepted his plea.
Defendant was sentenced on July 28, 2014, in accordance with the plea agreement
and awarded presentence credits.
On March 2, 2015, defendant filed a petition pursuant to section 1170.18,
subdivision (a) to have his felony sentence recalled and his offense resentenced as a
2
Defendant’s counsel notes in the Wende brief that the information also “alleges
with regard to appellant’s burglary charge that he sustained a prior conviction for a
serious felony pursuant to section 667.5, subdivision (a)(1), this pleading was defective in
the absence of any subsequent amendment reflecting the appropriate provision for this
allegation—section 667, subdivision (a)(1).” We need not consider this issue, because it
is not at all relevant to the appeal.
3
People v. Harvey (1979) 25 Cal.3d 754.
2
misdemeanor. The petition for resentencing was denied by the trial court in a witten
order filed on March 3, 2015, on the ground that defendant was “not eligible.”
This appeal followed.
We have reviewed the record on appeal and conclude that there are no meritorious
issues to be argued. Defendant’s petition for resentencing was filed pursuant to section
1170.18, subdivision (a). That section lists certain crimes for which a defendant may be
eligible to be resentenced. It does not list section 245, the felony violation for which
defendant was convicted. The trial court summarily denied the petition on the ground
that defendant was not eligible for the relief he sought.
We conclude there are no arguable issues within the meaning of People v. Wende,
supra, 25 Cal.3d 436. The order is affirmed.
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
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