People v. Miller CA4/1

Filed 4/17/23 P. v. Miller CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081123
Plaintiff and Respondent,
v. (Super. Ct. No. SCD285303)
HUGH HENRY MILLER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Affirmed.
Matthew A. Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
This appeal follows a revocation of felony probation and a commitment
to state prison.
Hugh Henry Miller pleaded guilty to felony possession of a concealed
dirk or dagger (Pen. Code, § 21310) and a misdemeanor possession of drug
paraphernalia (Health and Saf. Code, § 11364). Miller was granted probation
subject to a number of conditions.
About a year later, the court summarily revoked Miller’s probation.
Following a contested evidentiary hearing, the court found Miller violated
probation on several grounds, including the filing of a new criminal
complaint, case No. SCD295354. The court also denied Miller’s motion to
relieve appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118.)
The court declined to reinstate Miller on probation and committed him
to prison for a two-year term. Miller filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Miller the opportunity to
file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
Counsel has provided an accurate summary of the facts relevant to the
probation revocation. We will include those facts here for convenience.
Charlotte Hess, an officer with the San Diego Police Department,
testified that on July 7, 2022 she responded to a call for service at the Pearl
Car Wash regarding a restraining order violation. Officer Hess arrived on
scene and located Miller. Officer Hess made contact with Miller, placed him
in handcuffs, and searched him. During the search a fixed-blade knife was
located concealed in the left jacket pocket of Miller. This knife was similar to
a kitchen knife.
Jordan Vargas, an officer with the San Diego Police Department,
responded to a call for service on July 29, 2022. Miller was contacted on
scene by Officer Vargas. Officer Vargas determined there were outstanding
warrants for Miller and eventually arrested him. During a search of Miller,
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Officer Vargas located one live .223 rifle round in Miller’s front left shorts
pocket.
The trial court took judicial notice of the terms and conditions of
probation for case No. SCD285303. A term and condition of probation was
that Miller “not knowingly possess firearm, ammunition, or a weapon.” The
court found Miller in violation of probation, specifically that Miller violated
both the “obey all laws and violating 6(a) and 6(d), not knowingly possess
firearm, ammunition, or deadly weapon.”
On October 20, 2022, the court denied further probation and sentenced
Miller to state prison. The court stated it would be “an exercise in futility to
reinstate [Miller] on probation.” Further, the court found there were no
aggravating circumstances to justify the upper term but noted Miller’s
lengthy criminal history in imposing the middle term over the low term.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified three possible issues that were considered in evaluating the
potential merits of this appeal.
1. Whether there was substantial evidence to support the finding
that Miller violated probation.
2. Whether the court abused its discretion in denying Miller’s
Marsden motion.
3. Whether the court abused its discretion in imposing a middle
term sentence instead of choosing the lower term.
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We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Miller on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
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