People v. Miller CA3

Filed 11/15/24 P. v. Miller CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C100466

Plaintiff and Respondent, (Super. Ct. No. 62-098243)

v.

BRAD ROBERT MILLER,

Defendant and Appellant.

Appointed counsel for defendant Brad Robert Miller 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.) Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. We will affirm. BACKGROUND A jury found defendant guilty of first degree murder and unlawful firearm activity in 2012 and found true the allegation that defendant personally discharged a firearm causing death. The probation report indicated that, at some time before the murder,

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defendant had earned $500,000 per year. Defendant’s counsel objected to a number of sections of the probation report, which the trial court struck, but did not dispute the accuracy of defendant’s income or contend defendant lacked the ability to pay fines or fees. The trial court sentenced defendant to 53 years to life in state prison. The court imposed a $10,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b)1 and imposed and suspended a $10,000 parole revocation restitution fine, pursuant to section 1202.45. Defendant appealed, but did not challenge the restitution fine on appeal. (People v. Miller (Aug. 21, 2014, C071677) [nonpub. opn.] [2014 Cal. App. Unpub. LEXIS 5924].) This court affirmed the judgment. (Ibid.) In 2023, defendant filed a motion asking the trial court to vacate the $10,000 restitution fine. Defendant argued that Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Assembly Bill No. 1869) (Stats. 2020, ch. 92) and section 1465.9 repealed the restitution fine and required the court to vacate the portion of the judgment imposing it. Defendant also contended the court violated his right to due process by imposing the restitution fine without considering his ability to pay the fine. The trial court denied the motion, explaining that Assembly Bill No. 1869 did not repeal section 1202.4, subdivision (b), and section 1465.9 did not apply to restitution fines. The court also determined defendant could not raise his ability to pay the restitution fine using a postconviction motion because he had already had the opportunity to raise that issue on direct appeal. Defendant timely appealed the denial of his motion. Defendant asked to represent himself, but failed to file a brief that complied with the California Rules of Court. (See