Filed 5/21/15 P. v. Miller CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B260392
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA062022)
v.
MICHAEL ANTHONY MILLER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B.
Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Michael Miller of two counts of first
degree robbery in violation of Penal Code section 211.1 The jury found true the
allegation that defendant personally used a firearm in the commission of the robberies. (§
12022.53, subd. (b).) The trial court found true the allegations that defendant suffered six
prior felony convictions within the meaning of section 667, subdivision (a) and the
“Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and that he served
four prison terms within the meaning of section 667.5, subdivision (b). The trial court
sentenced defendant to a term of 46 years to life in state prison. We affirmed defendant’s
judgment on appeal.
Following the November 2012 passage of Proposition 36 and the enactment of
section 1170.126, defendant filed a petition for writ of habeas corpus seeking
resentencing under Proposition 36. The trial court treated the habeas petition as a petition
for a recall of defendant’s sentence under section 1170.126 and denied the petition with
prejudice because one (actually both) of defendant’s current convictions was for first
degree robbery which is a violent felony under section 667.5, subdivision (c)(9) making
him ineligible for resentencing under section 1170.126. (§ 1170.126, subd. (e)(2).)
On appeal, defendant’s appointed counsel filed an opening brief in accordance
with People v. Wende (1979) 25 Cal.3d 436 requesting that this court conduct an
independent review of the record to determine if there are any arguable issues. On
February 26, 2015, we gave notice to defendant that counsel had failed to find any
arguable issues and that defendant had 30 days within which to submit by brief or letter
any grounds of appeal, contentions, or arguments he wished this court to consider.
Defendant did not file a responsive brief or letter. We affirm.
1 All statutory citations are to the Penal Code unless otherwise noted.
2
DISCUSSION2
The trial court properly denied defendant’s petition for a recall of his sentence.
Defendant was convicted of robbery. Robbery is a violent felony. (§ 667.5, subd.
(c)(9).) A defendant serving a third strike prison term for a current violent felony
conviction is ineligible for Proposition 36 resentencing. (§ 1170.126, subd. (e)(2).)
We have otherwise examined the entire record and are satisfied that defendant’s
counsel has fully complied with his responsibilities and that no arguable issues exist.
(People v. Wende, supra, 25 Cal.3d at p. 441.) Accordingly, we affirm the order.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, Acting P. J.
We concur:
KRIEGLER, J.
GOODMAN, J.
2 We omit a recitation of the facts concerning defendant’s underlying offenses as
defendant’s appeal is from an order denying a post-judgment petition for a recall of his
sentence to which petition the facts of defendant’s offenses were not relevant.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
3