Filed 11/16/21 P. v. Miller CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B310804
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No.
TA037989)
v.
GERALD LEE MILLER,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Connie R. Quinones, Judge. Affirmed.
Cheryl Lutz, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 1998, a jury convicted appellant Gerald Lee Miller of 11
felonies and found true related enhancements.1 The superior
court sentenced appellant to a total determinate term of 42 years.
On count 1, attempted murder (Pen. Code, §§ 187, 664)2, the
court sentenced appellant to a total of 22 years: the upper term of
nine years for the attempted murder (§ 664, subd. (a)), plus 10
years for personal use of a firearm (§ 12022.5, subd. (a)), and
three years for the infliction of great bodily injury (§ 12022.7,
subd. (a)). On count 3, the court imposed a consecutive sentence
of three years, four months for robbery (§ 211), a firearm
enhancement (§ 12022.5, subd. (a)), and an enhancement for
inflicting great bodily injury (§ 12022.7, subd. (a)). The court
imposed consecutive sentences of two years, four months on each
of counts 6, 7, and 8, for robbery (§ 211) and related firearm
enhancements (§ 12022.5, subd. (a)). On count 13, the court
imposed a consecutive sentence of three years, eight months for
attempted murder (§§ 187, 664) and a related firearm
enhancement (§ 12022.5, subd. (a)). Consecutive to the collective
consecutive term of 36 years, the court imposed one year for each
of six prison priors. (§ 667.5, subd. (b)). The court imposed and
stayed sentences on count 2, attempted robbery (§§ 211, 664,
12022.5, subd. (a), 12022.7, subd. (a)), count 5, assault with a
firearm (§§ 245, subd. (a)(2), 12022.7, subd. (a)), and counts 10,
11, and 12, felon in possession (former § 12021, subd. (a)),
pursuant to section 654.
1 The counts are numbered 1 through 13; counts 4 and 9
were dismissed.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
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Appellant appealed his convictions and sentence. We
affirmed his convictions but ordered his sentence modified.
Pursuant to a remittitur issued June 27, 2000, the superior court
struck two of the one-year prison priors (§ 667.5, subd. (b)) and a
great bodily injury enhancement (§ 12022.7, subd. (a)) on stayed
count 5, and reduced appellant’s restitution fine from $1,000 to
$200. After these modifications, appellant’s total sentence was 40
years.
On January 19, 2021, appellant filed a petition for writ of
habeas corpus seeking further modification of his sentence. He
cited Senate Bill No. 620 (Stats. 2017, ch. 682, § 2), which gave
superior courts discretion to strike firearm enhancements; Senate
Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2), which gave superior
courts discretion to strike serious felony enhancements imposed
under section 667, subdivision (a)(1); the Los Angeles County
District Attorney’s Special Directive 20-14, which set forth
policies regarding resentencing; and section 1170, subdivisions
(a)(1) and (b), which respectively state the purpose of sentencing
and vest in the superior court discretion to select a term that best
serves the interest of justice. Appellant attached to his petition a
letter from his son and numerous certificates he has earned for
completing rehabilitative programming during his incarceration.
The superior court denied the petition on February 2, 2021.
It concluded that, “[t]o the extent that the defendant is
requesting a modification pursuant to 1170(d), and more
specifically, the District Attorney’s new sentencing policy, he
lacks standing to bring a motion pursuant to this section.” The
court further stated there was no legal basis to modify the
sentence.
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Appellant timely filed a notice of appeal on February 16,
2021. On June 18, 2021, his appointed appellate counsel filed a
brief raising no issues and requesting this court follow the
procedures set forth in People v. Serrano (2012) 211 Cal.App.4th
496 (Serrano). Under Serrano, when appointed counsel raises no
issues in an appeal from a post-judgment proceeding following a
first appeal as of right, an appellate court need not independently
review the record. (Id. at 498.) On June 18, 2021, we directed
counsel to send the record and a copy of the brief to appellant,
and to notify him of his right to respond within 30 days. On July
20, 2021, appellant filed a supplemental brief.
Appellant first requests that we apply the abuse of
discretion standard of review set forth in People v. McCallum
(2020) 55 Cal.App.5th 202 (McCallum) and People v. Martinez
(Apr. 21, 2021, No. H04805) 2021 Cal.App.Unpub. LEXIS 2567
[nonpub. opn.] (Martinez). In McCallum, the Secretary of the
Department of Corrections and Rehabilitation, acting under the
authority of section 1170, subdivision (d)(1),3 recommended that
McCallum’s sentence be recalled based on his violation-free
3 Section 1170, subdivision (d)(1) provides in relevant part
that a defendant’s sentence may be recalled and the defendant
resentenced “at any time upon the recommendation of the
secretary [of the Department of Corrections and Rehabilitation]
or the Board of Parole Hearings . . . or the district attorney of the
county in which the defendant was sentenced.” As the superior
court correctly observed in its ruling, section 1170, subdivision (d)
does not authorize a defendant to request resentencing on his or
her own behalf. (See Portillo v. Superior Court (1992) 10
Cal.App.4th 1829, 1833 [“section 1170, subdivision (d) by its own
terms precludes (defendant) from having standing to bring a
motion under that section to recall his sentence”].)
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conduct and completion of various educational and self-
awareness programs. (McCallum, supra, 55 Cal.App.5th at p.
206.) The superior court denied the recommendation without
providing McCallum with an opportunity to submit additional
information for its consideration. (Ibid.) The Court of Appeal
concluded the superior court abused its discretion and remanded
the matter to give both McCallum and the prosecution an
opportunity to present additional information to the court. (Id. at
p. 207.) Similarly, in Martinez, the Secretary of the Department
of Corrections and Rehabilitation recommended that the superior
court resentence Martinez in accordance with Senate Bill No.
1393. (Martinez, supra, 2021 Cal.App.Unpub. 2567, at p. *3.)
The superior court denied the recommendation as an improper
attempt to extend the reach of Senate Bill No. 1393 to all
defendants whose cases were final. (Id. at pp. *3-*4.) The Court
of Appeal agreed with Martinez and the Attorney General that
the trial court misunderstood the scope of and therefore abused
its discretion. (Id. at pp. *5, *9-*10.)
Neither McCallum nor Martinez is pertinent. Both cases
involved recommendations for resentencing made by the
Secretary of the Department of Corrections and Rehabilitation
pursuant to section 1170, subdivision (d). The Secretary made no
recommendation here, and appellant may not make one on his
own behalf. (See § 1170, subd. (d)(1); Portillo v. Superior Court,
supra, 10 Cal.App.4th at p. 1833.) Moreover, unlike the court in
McCallum, the superior court here had before it appellant’s
additional materials, including his certificates of completion and
the letter from his son. And unlike Martinez, Senate Bill No.
1393 has no application here because appellant did not have prior
serious felony convictions within the meaning of section 667,
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subdivision (a). Moreover, even if it were on point, Martinez is an
unpublished opinion that may not be cited or relied upon (Cal.
Rules of Court, Rule 8.1115(a)).
Appellant next argues that “the trial court erred in its legal
conclusion” because it failed to apply current law to his petition.
He asserts that section 1170 allows defendants to seek sentence
modification after serving five years of their term, and points to
his completion of rehabilitative programming and more than five
years of good behavior. As noted above, section 1170, subdivision
(d)(1) does not permit defendants to seek resentencing. Section
1170, subdivision (d)(2) permits defendants who were sentenced
to life imprisonment without the possibility of parole, were
“under 18 years of age at the time of the commission of the
offense,” and have been incarcerated for at least 15 years to file a
petition for recall and resentencing. However, appellant was not
sentenced to life imprisonment without the possibility of parole
and was not under age 18 when he committed the series of
offenses for which he is incarcerated. Appellant accordingly is
not authorized to seek resentencing on his own behalf.
Appellant next contends the superior court exercised its
discretion in an arbitrary and capricious fashion that resulted in
a manifest miscarriage of justice. Specifically, he asserts the
superior court erroneously concluded he lacked standing to seek
resentencing and failed to make any determination about his
suitability for resentencing. As stated above, appellant did lack
standing to file a petition for recall of sentence under section
1170, subdivision (d). Appellant also lacked standing to file a
petition under section 1170, subdivision (e), which permits “the
secretary [to] recommend to the court that the prisoner’s sentence
be recalled” if the prisoner is terminally ill or otherwise medically
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incapacitated. The superior court therefore did not abuse its
discretion in denying the petition without further consideration of
appellant’s suitability for resentencing.
Appellant next argues the superior court misunderstood
the scope of its discretion by failing to find him eligible for relief
under Senate Bill No. 1393. Appellant correctly recognizes that
Senate Bill No. 1393 gave superior courts the discretion to strike
enhancements for prior serious felony convictions imposed under
section 667, subdivision (a) (see People v. Stewart (2021) 62
Cal.App.5th 1065, 1074), but fails to recognize that the prior
conviction enhancements in this case were imposed under section
667.5, subdivision (b), to which Senate Bill No. 1393 does not
apply. Appellant asserts for the first time on appeal that these
enhancements must be stricken under Senate Bill No. 136 (Stats.
2019, ch. 590, § 1), which limited the reach of section 667.5,
subdivision (b) to sexually violent prior offenses. (See People v.
Winn (2020) 44 Cal.App.5th 859, 872.) Appellant forfeited this
contention by failing to raise it below. Even if the contention
were preserved, Senate Bill No. 136 applies retroactively only to
cases that are not yet final. (People v. Winn, supra, 45
Cal.App.5th at p. 872.) Appellant’s case has been final for
approximately two decades.
Despite acknowledging that the issue “has-not [sic] been
raised in this petition,” appellant further argues that his
sentence is illegal because both a great bodily injury
enhancement (§ 12022.7, subd. (a)) and a firearm enhancement
(§ 12022.5, subd. (a)) were imposed on count 1. This contention is
forfeited because it was not raised below. Moreover, the case on
which appellant relies, People v. Cook (2015) 60 Cal.4th 922, 924,
holds that great bodily injury enhancements do not apply to
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convictions for murder or manslaughter. Appellant was convicted
of attempted murder in count 1.
Finally, appellant asserts the superior court abused its
discretion by imposing a blanket policy “instead of making an
individualized determination on the appellant’s request under
[S]enate [B]ill 620 and [S]enate [B]ill 1393.” As stated above, the
superior court correctly concluded that appellant had no
authority to make his request. To the extent appellant’s
unsupported assertion implicates Martinez, supra, 2021
Cal.App.Unpub. LEXIS 2567, that unpublished case is not
citeable authority. (Cal. Rules of Court, Rule 8.1115(a).)
Appellant fails to raise any arguable contention that the
superior court erred in denying him relief. (See People v. Hertz
(1980) 103 Cal.App.3d 770, 780 [appellant has affirmative duty to
show error].)
DISPOSITION
The superior court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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