People v. Miller CA1/3

Filed 6/30/15 P. v. Miller CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A140999 v. WALTER KRISTOPHER MILLER, (Mendocino County Super. Ct. No. Defendant and Appellant. SCUKCRCR137143703)

Defendant Walter Kristopher Miller was charged with premeditated attempted murder of Deputy Sheriff Darren Brewster (Pen. Code, §§ 187, subd. (a), 664)1; assault with a firearm on Brewster (§ 245, subd. (d)(1)); two counts of first degree burglary (§§ 459, 460, subd. (a)); dissuading a witness (§ 136.1, subdivision (c)(1)); and possession of a firearm by a felon (§ 29800, subd. (a)). He entered a no contest plea to one of the burglary counts, and was convicted by a jury of the other offenses. The court found that Miller had two prior strike convictions (§§ 667, 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and had served two prior prison terms within the past five years (§ 667.5, subd. (b)). The court sentenced him to an indeterminate term of 115 years to life in prison, and a consecutive determinate term of 68 years. Miller contends that the court erred when it denied his motion to remove a juror who briefly dozed off twice during his 10-day trial. He also identifies a sentencing error,

1 Subsequent statutory references are to the Penal Code.

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which the People concede. The juror’s retention was not an abuse of discretion, and we affirm the judgment as modified to correct the sentencing error. I. BACKGROUND A. Assault on Deputy Brewster Miller admitted that he and Christopher Skaggs burglarized the residence of William Haga and his wife on February 25, 2013, and stole ammunition and several weapons, including a 9 millimeter AP-9 handgun. After responding to the Haga burglary that night, Brewster was on his way to another assignment when he noticed a car merge dangerously into traffic and tailgate another vehicle. He pulled the car over after confirming that its registration had expired. When he got to the driver’s window and asked for the driver’s license and registration, the driver “smirked” and sped off. Brewster pursued. Brewster testified that during the chase, Miller, a passenger in the car, leaned out a window, turned completely around to face him and fired shots at him from a handgun. Based on the “multiple muzzle flashes” Brewster saw from the gun, he believed that the gun was pointed at him when it was fired. He veered to avoid the shots and tried to continue the chase, but his car slowed and he pulled to a stop. He discovered a bullet hole in his radiator, and fluid all over the road. Miller was arrested two days later in a motel after a three-hour standoff. Police found an AP-9 handgun and two ammunition clips in the room. Police found one bullet and three shell casings near where Brewster’s car was shot. Toolmark analysis indicated the casings were fired from the AP-9 handgun found in the motel room where Miller was arrested. Skaggs’s girlfriend Tracy Cox testified that Skaggs was driving the car, Miller was in the front passenger seat, and she was in the back seat when Miller fired the shots. She said that when Brewster approached the car, she told Skaggs to drive off because she was afraid that Miller was going to kill Brewster. She said Miller had a gun, put his hand on Skagg’s head, and told him to duck just as Brewster was getting to the driver’s door. She