People v. Miller CA1/2

Filed 5/6/16 P. v. Miller CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A146476 v. XAVIER ANDREWS MILLER, (Contra Costa County Super. Ct. No. 51407717) Defendant and Appellant.

Defendant Xavier Andrews Miller appeals from a judgment and sentence entered on his plea of no contest to a felony charge for first degree residential burglary, with enhancements, and illegal possession of a firearm by a felon. His court-appointed attorney has filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Miller was advised of his right to file a supplemental brief by his attorney. No supplemental brief has been filed. This court has reviewed the entire record and found no arguable issue requiring further briefing. PROCEEDINGS BELOW On April 7, 2014, Miller and three co-defendants were charged by indictment with multiple counts arising from a residential burglary committed on January 1, 2014. Miller also was charged with two counts of illegal possession of a firearm (by a felon, and by a probationer), for another incident occurring several months after the burglary. Before trial, he moved unsuccessfully to set aside the indictment. He also moved to sever the firearms counts for trial, and a ruling was deferred until assignment of a trial judge.

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Thereafter, while awaiting trial, Miller completed a “Felony Advisement of Rights, Waiver and Plea Form” and entered into a plea agreement calling for a 10-year prison term. He entered a no contest plea to count two, first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)), and in connection with that count also admitted a criminal street gang enhancement (id., § 186.22, subd. (b)(1)) and an allegation that another person was present in the residence during the commission of the burglary (id., § 667.5, subd. (c)(21)). He entered a no contest plea to an amended count 11, assault by means of force likely to produce great bodily injury (id., § 245, subd. (a)(4)). And he entered a no contest plea to count eight, felon in possession of a firearm (id., § 29800(a)(1)). The court canvassed Miller orally, accepted his plea, imposed the agreed upon 10-year sentence and dismissed the remaining counts and enhancements. It also terminated two open probation violation files. Miller’s sentence. The court imposed a midterm, four-year prison sentence for count two, the first degree residential burglary, with a consecutive five-year term for the criminal street gang enhancement. It imposed a consecutive sentence of one year for the assault charge, count 11, which was one-third the midterm. And it imposed a concurrent, two-year sentence for the felon in possession of a firearm offense, count eight. Miller received 604 days of presentence custody credits, consisting of 526 actual days and 78 conduct credits. The court imposed a $300 restitution fine (Pen. Code, § 1202.4), and assessed a $120 court operation fee and a $90 criminal conviction fee. It also imposed a suspended $300 parole revocation fine (id., § 1202.44). Timely notice of appeal was filed on October 5, 2015. Miller did not obtain a certificate of probable cause. The notice of appeal he filed on October 5, 2015, states it is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. However, in an attachment to the notice of appeal, Miller filled out a portion of the judicial council form requesting a certificate of probable cause. (Pen. Code, § 1237.5, subd. (b); Cal. Rules of Ct., rule 8.304, subd. (b).) The trial court neither granted nor denied his request for one.