People v. Miller CA2/4

California Court of Appeal Nov 16, 2021 No. B310804Unpublished

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Holding. The court held that a defendant lacks standing to file a petition for recall and resentencing under Penal Code section 1170, subdivision (d), absent a recommendation from the Secretary of the Department of Corrections and Rehabilitation or the district attorney. Furthermore, the court determined that the defendant's sentence was final and not subject to retroactive relief under Senate Bill Nos. 620, 1393, or 136.

Issues

Whether a defendant has standing to file a petition for recall and resentencing under Penal Code section 1170, subdivision (d).
Whether the superior court abused its discretion in denying the defendant's petition for resentencing.
Whether the defendant is entitled to retroactive relief under Senate Bill Nos. 620, 1393, or 136.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“As the superior court correctly observed in its ruling, section 1170, subdivision (d) does not authorize a defendant to request resentencing on his or her own behalf.”

“The Secretary made no recommendation here, and appellant may not make one on his own behalf.”

Filed 11/16/21 P. v. Miller CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B310804

Plaintiff and (Los Angeles County Respondent, Super. Ct. No. TA037989) v.

GERALD LEE MILLER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Connie R. Quinones, Judge. Affirmed. Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

In 1998, a jury convicted appellant Gerald Lee Miller of 11 felonies and found true related enhancements.1 The superior court sentenced appellant to a total determinate term of 42 years. On count 1, attempted murder (Pen. Code, §§ 187, 664)2, the court sentenced appellant to a total of 22 years: the upper term of nine years for the attempted murder (§ 664, subd. (a)), plus 10 years for personal use of a firearm (§ 12022.5, subd. (a)), and three years for the infliction of great bodily injury (§ 12022.7, subd. (a)). On count 3, the court imposed a consecutive sentence of three years, four months for robbery (§ 211), a firearm enhancement (§ 12022.5, subd. (a)), and an enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)). The court imposed consecutive sentences of two years, four months on each of counts 6, 7, and 8, for robbery (§ 211) and related firearm enhancements (§ 12022.5, subd. (a)). On count 13, the court imposed a consecutive sentence of three years, eight months for attempted murder (§§ 187, 664) and a related firearm enhancement (§ 12022.5, subd. (a)). Consecutive to the collective consecutive term of 36 years, the court imposed one year for each of six prison priors. (§ 667.5, subd. (b)). The court imposed and stayed sentences on count 2, attempted robbery (§§ 211, 664, 12022.5, subd. (a), 12022.7, subd. (a)), count 5, assault with a firearm (§§ 245, subd. (a)(2), 12022.7, subd. (a)), and counts 10, 11, and 12, felon in possession (former § 12021, subd. (a)), pursuant to section 654.

People v. Miller CA2/4

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THE PEOPLE, B310804

GERALD LEE MILLER,

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