People v. Miller ( 2023 )

Filed 6/23/23 P. v. Miller
Opinion after transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B308504
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA002100)
v.
ANTHONY JEROME MILLER,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Richard M. Goul, Judge. Affirmed.
Vanessa Place, 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, Assistant
Attorney General, Charles S. Lee and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
Opinion following transfer from Supreme Court.
In 1990, appellant Anthony Jerome Miller was convicted of
second degree murder (Pen. Code, § 187, subd. (a))1 and found to
have personally used a dangerous and deadly weapon, a
screwdriver (§ 12022, subd. (b)). The court sentenced appellant
to a prison term of 15 years to life for the murder, plus one year
for the personal use enhancement.
In 2019, appellant filed a petition for resentencing
pursuant to section 1172.6 (former section 1170.95).2 The trial
court appointed counsel for appellant and ordered the People to
respond. In addition to arguing that section 1172.6 was
unconstitutional, the People argued that appellant was ineligible
for relief as a matter of law because he was the actual killer. At a
hearing on the petition, appellant’s counsel conceded that
appellant was the actual killer. The court concluded appellant
was ineligible for relief under section 1172.6 and denied the
petition.
Appellant timely appealed, and we appointed counsel to
represent him. On January 8, 2021, appellate counsel filed a
brief raising no issues and asking us to review the record
independently pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende). We notified appellant that he had the right to file a
supplemental brief, but did not advise him in that letter that his
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. We hereafter
refer to the statute as section 1172.6.
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appeal could be dismissed if he failed to respond. Appellant did
not file a supplemental brief. On April 19, 2021, this court
declined to independently review the record pursuant to People v.
Cole (2020) 52 Cal.App.5th 1023, 1028, review granted, Oct. 14,
2020, S264278 and dismissed the appeal as abandoned. (People
v. Miller (Apr. 19, 2021; B308504) [nonpub. opn.].)
The California Supreme Court granted review (case no.
S268331) and held the case behind People v. Delgadillo (2022) 14
Cal.5th 216 (Delgadillo). In Delgadillo, the court held that when
appointed counsel finds no arguable issues in an appeal from the
denial of a section 1172.6 petition, “(1) counsel should file a brief
informing the court of that determination, including a concise
recitation of the facts bearing on the denial of the petition; and
(2) the court should send, with a copy of counsel’s brief, notice to
the defendant, informing the defendant of the right to file a
supplemental letter or brief and that if no letter or brief is filed
within 30 days, the court may dismiss the matter.” (Delgadillo,
supra, 14 Cal.5th at pp. 231-232.) The court also held that we
retain discretion to independently review the record in any
section 1172.6 appeal. (Id. at p. 232.)
On March 29, 2023, the Supreme Court transferred the
matter back to this court with directions to vacate its decision
and reconsider whether to exercise its discretion to conduct an
independent review of the record or provide any other relief in
light of Delgadillo. (See Cal. Rules of Court, rule 8.528(d).)
Appellant’s counsel filed a supplemental brief requesting
this court send appellant a letter complying with the notice
requirements outlined in Delgadillo. The Attorney General filed
a supplemental brief arguing that we should either send
appellant a Delgadillo notice or “independently review the record,
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which shows that appellant was ineligible for relief as a matter of
law because he was the sole perpetrator and actual killer.”
We exercise our discretion to conduct a Wende review (see
Delgadillo, supra, 14 Cal.5th at p. 232) and conclude no arguable
issues exist. As the trial court correctly noted, the record
demonstrates appellant was the actual killer and is therefore
ineligible for section 1172.6 relief as a matter of law.
DISPOSITION
The order denying appellant’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
MORI, J.
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