Filed 10/10/13 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B242742
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA385119)
v.
ORDER MODIFYING OPINION
MAURICE DEON MILES,
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed on October 10, 2013, be modified as follows:
Delete the footnote at the bottom of page 1 that reads:
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication
with the exception of parts II and III.
Replace with footnote that reads:
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication
with the exception of parts II, III(A) and III(B)(2). The title of part III is to be published.
There is no change in the judgment.
_______________________ ______________________
TURNER, P.J. KUMAR, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
Filed 10/10/13 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B242742
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA385119)
v.
MAURICE DEON MILES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald
S. Coen, Judge. Affirmed as modified.
Randall Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Robert M. Snider, Deputy
Attorney General, for Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of parts II and III.
I. INTRODUCTION
Defendant, Maurice Deon Miles, appeals from a final judgment of conviction of
firearm possession by a felon following a jury trial. (Former Pen. Code 1 §12021, subd.
(a)(1), now § 29800, subd. (a)(1); Stats 2010, ch. 711.) (§§ 6; 667, subds. (b)-(i), 667.5,
subd., (c)(9), 1170.12, 1192.7, subd. (c)(19).) Defendant had previously been convicted
of robbery, a serious and violent felony. On July 19, 2012, defendant received a six-year
state prison sentence. Defendant received 830 days of presentence credit, consisting of
415 days of actual custody and 415 of conduct credits.
In the published portion of this opinion, we discuss defendant’s award of
presentence conduct credits. Defendant committed his crime prior to the October 1, 2011
effective date of the Criminal Justice Realignment Act of 2011. (People v. Moreno
(2013) 218 Cal.App.4th 846, 849; People v. Garcia (2012) 209 Cal.App.4th 530, 540.)
But he was sentenced after the effective date of that act on July 19, 2012. Defendant
contends his post-September 30, 2011 conduct credits should be calculated so he receives
two days of conduct credits for every two days of time actually served. (§ 4019, subd.
(f).) He reasons he is entitled to these credits based on the rule of lenity. (In re Tartar
(1959) 52 Cal.2d 250, 257; People v. Ralph (1944) 24 Cal.2d 575, 581, overruled on
another point in People v. Yates (1983) 34 Cal.3d 644, 650.) We respectfully disagree.
We modify the award of presentence conduct credits but otherwise affirm the judgment.
[Parts II is deleted from publication. See post at page 5 where publication is to resume.]
II. TESTIMONY
Defendant was originally charged with six counts. As noted, he was only
convicted of a single firearm possession by a felon count. At trial, the prosecution
1
All future statutory references are to the Penal Code.
2
presented testimony from Staneisha Randolph, Maresa Figueroa, and Officer Bradley
Nielson. On June 1, 2011, Ms. Randolph lived with a daughter, a nephew, and a brother,
Bobbie, in a one-bedroom house. Ms. Randolph’s home was behind the principal
residence, which was occupied by Ms. Figueroa. The front of Ms. Randolph’s house was
about 10 feet from Ms. Figueroa’s house.
Two weeks before the June 1, 2011 incident, Ms. Figueroa saw defendant, Bobbie,
and several others in the backyard passing around a gun. Ms. Figueroa stated the gun
was a “dark, shiny, old, pistol, revolver.” She saw defendant hold the gun. Later that
night, Ms. Figueroa heard gunfire in her backyard. At trial, Ms. Figueroa testified the
firearm defendant held resembled the gun photographed at the scene following
defendant’s arrest.
On June 1, 2011, Ms. Randolph was at home. Also present were Ms. Randolph’s
daughter and nephew and two visitors, Shawn Reece and Kimdrick Estrada. At about 5
p.m., defendant knocked on Ms. Randolph’s bedroom door. Defendant wanted to talk
with Mr. Estrada and Mr. Reece. Mr. Reece and defendant are cousins. Ms. Randolph
testified Mr. Estrada and Mr. Reece hid in the bathroom and refused to come out.
Defendant became upset and tried to come inside the bedroom by pulling on the door.
However, Ms. Randolph held onto the bedroom door and managed to close and lock it.
Ms. Randolph then heard defendant rip off the living room door. She ran to the living
room and saw defendant barge in with his gun out. Ms. Randolph testified the gun was a
revolver. She said the firearm resembled the gun photographed at the scene following
defendant’s arrest.
Defendant entered the bathroom and pointed the gun at Mr. Estrada’s ribs.
Defendant said to Mr. Estrada, “I will fucking kill you.” From her house, Ms. Figueroa
heard defendant say: “Do you think this is a game? I can waste you right now. I’ll do
you right now.” Mr. Reece intervened by jumping in front of defendant.
After Ms. Randolph saw the gun, she grabbed the children. Ms. Randolph fled to
Ms. Figueroa’s house. Ms. Randolph told Ms. Figueroa to call the police because
defendant had a gun. Ms. Randolph and Ms. Figueroa each spoke with the dispatcher.
3
They related that defendant had broken into Ms. Randolph’s house with a gun. Ms.
Randolph called the police a second time. She repeated that defendant had broken into
her home with a gun. As they were calling the police, Ms. Figueroa observed defendant
walking out of Ms. Randolph’s house. Defendant walked onto the doorstep of Ms.
Figueroa’s house. Ms. Figueroa yelled to defendant, “I called the police, get off the back
porch.” Defendant responded, “Oh, you called the police on me?” Ms. Figueroa did not
see defendant holding a gun that day. But she heard a clicking noise like “a gun being set
back into a safe position” as defendant walk away from her porch. Defendant returned to
Ms. Figueroa’s door and confirmed the women had called the police before he walked
away.
Officers Nielson and Steven Sieker arrived and saw defendant. Ms. Randolph
approached the officers and pointed towards defendant. Officer Nielson asked defendant
to stay there. But defendant fled down a driveway. Defendant dropped a handgun as he
approached a fence. Defendant looked at Officer Nielson. Defendant picked up the gun
and pointed it at Officer Nielson while in a crouched shooting position. Officer Nielson
fired three shots at defendant but missed. Defendant continued running and got entangled
on a wooden fence. Defendant then pointed the gun at Officers Nielson and Sieker.
Officer Nielson fired another shot and missed defendant again. Then, defendant fled over
the fence.
The officers decided to switch from chasing defendant to containing him.
Defendant was found hiding behind a residence about two hours later. The police
officers found a .38 caliber Smith & Wesson revolver on the ground in a nearby side
yard. No fingerprints were found on the gun.
Defendant presented testimony from Mr. Reece and Officer Andreas An. Mr.
Reece was dating Ms. Randolph at the time and believed he was the father of her unborn
child. Mr. Reece later learned the baby was not his child. Mr. Reece believed Ms.
Randolph was controlling and did not allow him to see other people.
On June 1, 2011, Mr. Reece spent the afternoon at Ms. Randolph’s house with Mr.
Estrada and Ms. Randolph drinking beer. Mr. Reece and Mr. Estrada were friends. From
4
the bathroom, Mr. Reece heard Ms. Randolph speaking to defendant. Mr. Randolph said
that Mr. Reece was not at the residence. Mr. Reece did not hear a door being tugged or
pulled off its hinges. After exiting the bathroom, Mr. Reece saw defendant talking with
Mr. Estrada. Defendant did not threaten or point a gun at Mr. Estrada. Mr. Reece, Mr.
Estrada, and defendant had a conversation and later walked out together. Mr. Reece
heard Ms. Figueroa yell and curse at them as they walked towards defendant’s residence.
Mr. Reece and Mr. Estrada then walked to a nearby store to buy snacks. Mr. Reece heard
gunshots and ran home. Later that night, Mr. Reece saw bullet holes in the black screen
front door of his home. Later, Mr. Reece spoke with a police officer. Mr. Reece denied
seeing defendant with a gun.
Officer An interviewed Ms. Randolph and Ms. Figueroa after the incident. Ms.
Randolph told Officer An that she called the police and went outside after the officers
arrived. Ms. Randolph said defendant fired one or two rounds at her and the police
officers. Ms. Figueroa also related she saw defendant pull out a gun from his waistband
and immediately heard gunshots. But Ms. Figueroa did not tell Officer An that defendant
had threatened Mr. Estrada.
[The heading for part III is to be published.]
III. DISCUSSION
[Part III(A) is deleted from publication. See post at page 7 where publication is to
resume.]
A. Defendant’s Pro Se Evidentiary Insufficiency Contentions
Defendant filed his notice of appeal on July 19, 2012. After the notice of appeal
was filed, we appointed counsel to represent defendant. After examination of the record,
appointed appellate counsel has filed a brief in which no issues are raised. Instead,
5
appointed appellate counsel has asked us to independently review the entire record on
appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. (See Smith v.
Robbins (2000) 528 U.S. 259, 264.) On February 21, 2013, we advised defendant he had
30 days within which to submit by brief or letter any contentions or argument he wished
us to consider.
On February 25, 2013, defendant submitted a “supplemental brief.” He argues:
Ms. Randolph and Ms. Figueroa’s testimony was not credible because they shared the
same lies and were biased against him; there are discrepancies in their testimony;
Ms. Randoph and Ms. Figueroa came up with the same story; he never had a gun; Mr.
Estrada was never threatened; and he never pointed a gun at any police officers.
Defendant also challenges Officer Nielson’s testimony. Defendant argues he did not
shoot at anyone. Officer Nielson fabricated his testimony in order to justify having twice
discharged his firearm. Finally, defendant asserts the prosecution failed to prove its case
beyond a reasonable doubt.
Defendant argues there is insufficient evidence to support his conviction for
firearm possession by a felon. In particular, he challenges the prosecution witnesses’
credibility. But as a reviewing court we cannot reweigh the evidence or reevaluate a
witness’s credibility. (People v. Nelson (2011) 51 Cal.4th 198, 210; People v. Booker
(2011) 51 Cal.4th 141, 172; People v. D’Arcy (2010) 48 Cal.4th 257, 293.) We have
examined the entire record in accordance with People v. Wende, supra, 25 Cal.3d at
pages 441-442. We agree with appointed appellate counsel that no arguable issue
favorable to defendant exists on appeal. Given the deferential standard of review, all of
defendant’s contentions are frivolous.
6
[Part III(B)(1) is to be published.]
B. Excessive Conduct Credits
1. Rule of lenity
We requested and received letter briefs from counsel on whether defendant
received excessive conduct credits. The parties agree defendant is entitled to only two
days of conduct credit for every four days of actual custodial confinement for the time
spent in custody prior to October 1, 2011. But defendant argues he is entitled to two days
of conduct credit for each two days served in county jail after September 30, 2011.
Defendant committed his offense on June 1, 2011. The offense was committed
prior to October 1, 2011, the effective date of Assembly Bill No. 1X 17 (Stats. 2011, 1st
Ex. Sess. 2011-2012 ch. 12, § 35). (People v. Rajanayagam (2012) 211 Cal.App.4th 42,
49-50; People v. Garcia, supra, 209 Cal.App.4th at p. 540.) Assembly Bill No. 1X 17,
which is the current version of section 4019, applies prospectively to an offense
committed on or after October 1, 2011. Section 4019, subdivision (h) provides: “The
changes to this section enacted by the act that added this subdivision shall apply
prospectively and shall apply to prisoners who are confined to a county jail, city jail,
industrial farm, or road camp for a crime committed on or after October 1, 2011. Any
days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required
by the prior law.”
Since defendant committed his offense prior to October 1, 2011, Senate Bill No.
76, which amended former sections 2933 and 4019, contains the controlling presentence
conduct credit provisions. (People v. Garcia, supra, 209 Cal.App.4th at pp. 535, 537-
539.) Under former section 4019, as amended by Senate Bill No. 76, local prisoners
were awarded two days of conduct credit for every four days in county jail. (Former §
4019, subds. (b) & (c), as amended by Stats. 2010, ch. 426, § 2; Sen. Rules Com., Off. of
Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 76 (2009–2010 Reg.
7
Sess.; People v. Garcia, supra, 209 Cal.App.4th at p. 537.) The Legislature explicitly
stated: “It is the intent of the Legislature that if all days are earned under this section, a
term of six days will be deemed to have been served for every four days spent in actual
custody.” (Former § 4019, subd. (f), as amended by Sen. Bill No. 76.) Senate Bill No.
76 applied to prisoners in local custody for crimes committed on or after September 28,
2010. (Former § 4019, subd. (g), as amended by Sen. Bill No. 76; People v. Garcia,
supra, 209 Cal.App.4th at p. 538.)
Senate Bill No. 76 also amended section 2933 to award day-for-day conduct credit
to certain prisoners in local presentence custody. (Former § 2933, subd. (e)(1), as
amended by Stat. 2010, ch. 426, §1, eff. Sept. 28, 2010.) But defendant had a prior
conviction for robbery, a serious and violent felony. (§§ 667, subds. (b)-(i), 667.5, subd.,
(c)(9), 1170.12, 1192.7, subd. (c)(19).) Under former section 2933, subdivision (e)(3), as
amended by Senate Bill No. 76, defendant’s prior conviction barred him from receiving
the day-for-day conduct credit. Former section 2933, subdivision (e)(3) states: “Section
4019, and not this subdivision, shall apply if the prisoner is required to register as a sex
offender, pursuant to Chapter 5.5. (commencing with Section 290), was committed for a
serious felony, as defined in Section 1192.7, or has a prior conviction for a serious
felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.”
This provision remained in effect until October 1, 2011. (People v. Garcia, supra, 209
Cal.App.4th at p. 538.) Thus, defendant’s presentence conduct credit is calculated under
former section 4019, as amended by Senate Bill No. 76. Based on the date defendant
committed his offense, he was entitled to only two days of conduct credit for every four
days of actual custodial confinement. Defendant is entitled to a total credit of 621 days
consisting of 415 days for presentence custody and 206 days for conduct credits.
Defendant argues the rule of lenity requires us to award him presentence custody
credit at two rates. As noted, defendant was arrested on June 1, 2011. Defendant argues
between June 1 and September 30, 2011, he is entitled to six days of presentence custody
credit for each four days of actual custody. But from October 1, 2011 to the July 19,
2012 sentencing, he should be awarded two days of conduct credit for two days of actual
8
custody. The rule of lenity is inapplicable because there is no ambiguity in section 4019
as effective October 1, 2011. Section 4019, subdivision (h) provides: “The changes to
this section enacted by the act that added this subdivision shall apply prospectively and
shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after October 1, 2011. Any days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
law.” The Legislature expressly made the enhanced custody credit prospective,
applicable to only those defendants who committed their offense on or after October 1,
2011. (People v. Rajanayagam, supra, 211 Cal.App.4th at pp. 51-52; People v. Ellis
(2012) 207 Cal.App.4th 1546, 1550, 1553; People v. Kennedy (2012) 209 Cal.App.4th
385, 395-396.) Thus, the rule of lenity is inapplicable. Defendant is entitled to 621 days
of custody consisting of 415 days of actual credit and 206 days of conduct credits.
[Part III(B)(2) is deleted from publication. See post at p. 10 where publication is
to resume.]
2. Equal protection
Defendant also argues he should be awarded two days of conduct credit for two
days of actual custody after October 1, 2011 based on equal protection principles. He
contends there is no rational basis to deny increased custody credits for those who
committed crimes before October 1, 2011 but are in presentence custody after this date.
This contention has no merit. (People v. Brown (2012) 54 Cal.4th 314, 328; People v.
Rajanayagam, supra, 211 Cal.App.4th at p. 47; People v. Verba (2012) 210 Cal.App.4th
991, 994-997.)
9
[The balance of the opinion is to be published.]
IV. DISPOSITION
The judgment is modified to grant defendant credit for 415 days in presentence
custody and 206 days of conduct credits for total credits of 621 days. The judgment is
affirmed in all other respects. Upon remittitur issuance, the superior court clerk is to
prepare an amended abstract of judgment and deliver a copy to the Department of
Corrections and Rehabilitation.
CERTIFIED FOR PARTIAL PUBLICATION
TURNER, P. J.
We concur:
MOSK, J.
KUMAR, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
10