People v. Miller CA1/2

Filed 11/12/14 P. v. Miller CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A141641 v. DANIEL JOSEPH MILLER, (Lake County Super. Ct. No. CR933356D) Defendant and Appellant.

Daniel Joseph Miller1 was present and in possession of a short-barreled shotgun when a co-defendant shot and killed David Ferrell and wounded two others. Miller was charged as an accomplice after the fact, for possession of a short-barreled shotgun, and for being a felon in possession of a firearm and ammunition. The complaint against him alleged a prior strike offense, for first degree residential burglary, committed when Miller was a minor. Pursuant to a plea bargain, Miller pleaded guilty to being a felon in possession of a firearm and the other charges were dismissed. Prior to sentencing, Miller filed a motion requesting that the trial court strike the allegation of the prior strike offense. The court denied Miller’s motion and sentenced him to three years in state prison, doubled to six years because of the prior strike. Miller’s appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) (see Anders v. California (1967) 386 U.S. 738 (Anders)), in which he raises no issue for appeal and asks this court for an independent review of the

1 Miller is also known as Daniel Joseph Cunningham.

1

record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Counsel attests that Miller was advised of his right to file a supplemental brief, but he has not exercised that right. We have examined the entire record in accordance with Wende. We agree with counsel that no arguable issue exists on appeal and affirm. BACKGROUND2 On September 8, 2013, David Ferrell was shot and killed in Clearlake, California. Two other victims also suffered gunshot wounds. A witness told the police that Joshua Beavers shot the victims and that Beavers arrived in a van with other individuals, including Orlando Esquivel, Sr. and Brenden Alicea. Police officers located the van at Esquivel’s house, and Esquivel, Beavers, Alicea, and Angel Esquivel (Angel) were inside. All admitted that they were present at the shooting. Beavers admitted to shooting Ferrell and firing at other individuals as he returned to the van. Beavers identified Miller as another person who was present at the shooting. He said that Miller had a short-barreled shotgun, but that Miller did not fire the gun. Angel said that she drove the van and also said that Miller was present with a short-barreled shotgun. After the shooting, she dropped off Esquivel, Beavers, Alicea, and Miller so they could hide the firearms. Alicea also confirmed that Miller was present and did not fire a weapon. On September 10, 2013, the People filed a complaint against Esquivel, Alicea, Angel and Miller. Miller was charged with the following counts: (1) accessory after the fact (Pen. Code, § 32)3 to murder, attempted murder, and assault with a firearm (§§ 187, subd. (a), 664/187, subd. (a), 245, subd. (a)(2), and 245, subd. (b)); (2) possession of a short-barreled shotgun (§ 33215); (3) being a felon in possession of a firearm (§ 29800, subd. (a)); and (4) being a felon in possession of ammunition (§ 30305, subd. (a)(1)). The complaint also alleged that Miller had a prior conviction for a serious or violent