Filed 7/12/21 P. v. Miller CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C092695
Plaintiff and Respondent, (Super. Ct. No. 62-98243)
v.
BRAD ROBERT MILLER,
Defendant and Appellant.
Appointed counsel for defendant Brad Robert Miller filed an opening brief that
sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d
436.) After considering defendant’s supplemental brief, which raises issues that could
have been raised in his initial appeal, we affirm.
1
BACKGROUND
Jury Trial
In June 2012, a jury found defendant guilty of the first degree murder of Eric
McGhee (Pen. Code, § 187, subd. (a)),1 and being a felon in possession of a firearm
(former § 12021, subd. (c)(1)). The jury also found true that defendant personally
discharged a firearm causing death (§ 12022.53, subd. (d)). He was sentenced to three
years in state prison plus an indeterminate term of 50 years to life. We affirmed the
judgment after finding any error in admitting evidence of the victim’s state of mind
during trial harmless. (See People v. Miller (Aug. 21, 2014, C071677) [nonpub. opn.]
(Miller).) As recounted in Miller, the evidence at trial showed the following:
In 2010, defendant moved in with McGhee, his longtime friend. One day,
McGhee found defendant drunk and with a gun in his mouth. After taking the gun away,
he transported defendant to the hospital to detox because he had been drinking too much.
Defendant continued to drink to excess after his hospital stay. During one drunken
episode, defendant threatened to kill everyone, scaring McGhee’s son who was present.
Following that incident, McGhee told several people that he planned on kicking
defendant out of the house.
On the morning of April 15, 2010, McGhee used his cell phone for the last time
from a location at or near his house. Shortly thereafter, McGhee’s neighbors heard two
loud gun shots from his home. Although friends and family members called and sent
McGhee numerous text messages after the last time he used his phone, none were
answered, and he failed to show up at a business meeting on April 17 in Los Angeles.
Evidence showed defendant last called McGhee on the morning of the day he
disappeared, April 15; he did not call McGhee again after 7:58 a.m. on that day.
1 Further undesignated statutory references are to the Penal Code.
2
Defendant later responded to a message from McGhee’s worried daughter on
April 17 inquiring about his whereabouts. Defendant told her that McGhee had gone to
Los Angeles and that he had not heard from him. Defendant did not mention he was in
possession of McGhee’s phone when she said she thought her father had lost his phone.
Later that day, defendant was arrested for driving under the influence in McGhee’s car.
Defendant had McGhee’s cell phone with him.
The following day, April 18, McGhee’s former wife and several family members
went to his house. After discovering pieces of his kitchen table broken in the backyard,
his teenaged daughter crawled through a pet door and unlocked the house. The house
was completely dark because most of the window coverings were closed and smelled like
rust. They discovered McGhee’s broken glasses and wallet in the kitchen. They called
police.
Officers responded to the scene to conduct a welfare check and discovered
McGhee dead in a closet with three gunshot wounds to the head, wrapped in a blanket
with blood on it. Upon further investigation, it was determined there was no forced entry
into the home and that the perpetrator was most probably a resident well known to
McGhee. Evidence collected inside the home showed a significant cleanup effort, and
officers discovered defendant’s set of keys, an unexpended .380-caliber bullet, and
bloody clothing consistent with defendant’s size in the washing machine. A swab of
blood found on defendant’s right foot tested positive for McGhee’s DNA.
One of defendant’s keys opened a gun safe in McGhee’s bedroom that contained
defendant’s .380-caliber Bersa semiautomatic handgun. A criminalist testified that two
of the bullets removed from McGhee’s body were fired by defendant’s .380-caliber gun,
and a damaged third bullet could have been fired by defendant’s gun. Stains and
smudges on an ammunition box and padlock tested presumptively positive for blood.
Defendant’s personal items were found packed up near the top of the stairs next to a
bathroom where a number of visible signs of blood were present.
3
Given the condition of the body, it was difficult to determine a precise time of
death. The pathologist believed the best indication of when McGhee died was close to
the time when he was last heard from on April 15.
As part of his job, McGhee hired and fired employees at his company, and
collected their work badges after letting employees go. Police found the identification
badges of four former employees at McGhee’s house. After further investigation, police
determined that none had been inside McGhee’s home and none were involved in his
murder.
During a police interview, defendant said he had been drinking heavily and that he
kind of remembered that McGhee had four friends or employees over, and that they
helped defendant clean up the broken kitchen table. When he looked around, he did not
see McGhee, which he thought was strange because his cell phone and car were still at
the house.
Three experts testified on defendant’s behalf. A DNA expert testified that it was
not unusual for one housemate to transfer DNA to another housemate. An expert in
homicide investigations testified that the investigation into McGhee’s death had been
poorly conducted. In his opinion, the crime scene had not been properly checked for
fingerprints and the ambient environment and temperature of the victim were not
collected. An expert pathologist estimated that defendant died approximately 24 hours
before his body was discovered on April 18. One of McGhee’s neighbors also testified
that he did not hear any gunshots on the morning of April 15.
Petition for Resentencing Under Section 1170.95
In August 2020, defendant filed a petition under Senate Bill No. 1437 (2017-2018
Reg. Sess.) and section 1170.95 to have his murder conviction vacated and to be
resentenced. He requested the appointment of counsel. His petition asserted that he
could not now be convicted of first degree murder given Senate Bill No. 1437’s changes
to sections 188 and 189, and that his firearm enhancement did not preclude him from
4
relief. In an attached declaration, defendant declared that the prosecution had tried the
case on the theories of felony murder or murder under the natural and probable
consequences doctrine.
The trial court summarily denied the petition without appointing counsel or
requesting briefing from the parties, finding defendant had failed to establish a prima
facie case for relief under section 1170.95 because he was not convicted of first degree
murder based on either felony murder or the natural and probable consequences doctrine.
The court noted that the jury was not instructed on principles related to either theory, and
was instead required to find that defendant acted with a specific intent to kill under
CALCRIM No. 520 with which the jury was instructed. Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30
days of the date of filing of the opening brief.
Defendant filed a supplemental brief challenging whether substantial evidence
supported his convictions.2 He disagrees with the prosecution and defense’s theories of
the case, and argues that the four men he remembered being at the house were not
properly investigated. According to defendant, the record showed he was not in his
normal mental state leading up to the murder, and he contends he did not harbor any
malice toward McGhee or wish him dead.
2 Because defendant filed a supplemental opening brief raising several issues, we do not
address appointed counsel’s request to conduct an independent review of the record even
if defendant was not technically entitled to Wende review in this postconviction
proceeding because it does not constitute a first appeal of right in defendant’s case.
5
To the extent defendant is raising evidentiary challenges, these challenges are
waived. (People v. Jordan (2018) 21 Cal.App.5th 1136, 1143 [the doctrine of waiver
precludes successive appeals based on issues ripe for consideration in the prior appeal
and not brought in that proceeding]; People v. Senior (1995) 33 Cal.App.4th 531, 538
[“where a criminal defendant could have raised an issue in a prior appeal, the appellate
court need not entertain the issue in a subsequent appeal absent a showing of justification
for the delay”].) The time to appeal such evidentiary issues has long since passed, and
because he did not raise them in his initial appeal (Miller, supra, C071677), he is
precluded from belatedly doing so now.
Furthermore, we reject defendant’s claim that he lacked malice during the killing.
The jury found otherwise in finding defendant guilty of first degree murder. (§ 187,
subd. (a) [“Murder is the unlawful killing of a human being, or a fetus, with malice
aforethought.”].)
DISPOSITION
The order summarily denying defendant’s section 1170.95 petition is affirmed.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
RENNER, J.
6