P. v. Miller CA2/1

Filed 8/1/13 P. v. Miller CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B242973

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA014304) v.

JUSTIN THOMAS MILLER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Charles A. Chung, Judge. Appeal treated as a petition for writ of habeas corpus and denied. California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Marc A. Kohm and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Justin Thomas Miller appeals from an order of the trial court denying his motion to award additional presentence credit. Defendant contends that although his probation was revoked on a different case and he was sentenced on that case while he was awaiting his trial in the present case, he should have been given credit in the present case for his entire period of custody, from arrest until sentencing on the present case. We conclude the order was not appealable, but treat the appeal as a petition for writ of habeas corpus and deny the petition for failure to make a prima facie showing of entitlement to additional credit. BACKGROUND In 1997 a jury convicted Justin Thomas Miller of assault with a firearm, discharging a firearm from a motor vehicle, and possession of a firearm by a convicted felon. The jury further found that he used a firearm in the commission of the first two offenses and committed all three offenses in association with a criminal street gang. The trial court sentenced him to 18 years in prison and awarded no presentence credit. We affirmed his conviction on appeal, but agreed that the firearm-use enhancement had been improperly imposed on his conviction for discharging a firearm from a motor vehicle and remanded for resentencing. (People v. Miller (B118884) [nonpub. opn.].) Upon remand, the trial court sentenced defendant to 17 years in prison and directed the Department of Corrections to calculate defendant’s credits. Defendant again appealed, and we affirmed. (People v. Miller (B139535) [nonpub. opn.].) The California Appellate Project apparently filed an ex parte motion to correct defendant’s presentence credits, and on November 20, 2000, the trial court awarded defendant a total of 104 days of presentence credit, consisting of 91 days of actual custody time and 13 days of conduct credit. On May 14, 2012, defendant filed a motion for presentence credit, asking the trial court to award him 159 days for actual custody, citing and attaching pages from his probation report prepared for both the present case and case No. MA012399. The