People v. Miller CA2/7

Filed 2/17/21 P. v. Miller CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B305719

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA465938) v.

DAMEON MILLER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mildred Escobedo, Judge. Reversed and remanded with directions. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Dameon Miller of various crimes, and the trial court sentenced him to an aggregate prison term of 35 years, which included a five-year term for a prior serious felony conviction under Penal Code section 667, subdivision (a)(1).1 Miller appealed and asked this court to remand the matter to allow the trial court to exercise its discretion whether to strike the five-year enhancement under section 667, subdivision (a)(1), and to give him an opportunity to request a hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) on his ability to pay the fines and assessments the trial court imposed. This court affirmed Miller’s convictions, vacated his sentence, and directed the trial court to consider whether to exercise its discretion to strike the five-year enhancement and to allow Miller to request a hearing on his ability to pay. (People v. Miller (Jan. 27, 2020, B294274) [nonpub. opn.].) On remand the trial court considered whether to strike the five-year enhancement under section 667, subdivision (a)(1), without holding a hearing. Ruling in chambers, the trial court declined to strike the enhancement. The court’s written “Order Pursuant to Remittitur” stated: “At the [original] sentencing this court made a very clear record of the egregious conduct [Miller] inflicted upon the victims. The court imposed [his] sentence pursuant to those facts. Upon reconsideration, the court declines to resentence the [section 667, subdivision (a)(1),] enhancement.” The order also stated that, “[w]ith regard to the ability to pay issue, the court adopts the findings of” four post-Dueñas