People v. Miller

Filed 6/23/23 P. v. Miller Opinion after transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B308504

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA002100) v.

ANTHONY JEROME MILLER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Richard M. Goul, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion following transfer from Supreme Court. In 1990, appellant Anthony Jerome Miller was convicted of second degree murder (Pen. Code, § 187, subd. (a))1 and found to have personally used a dangerous and deadly weapon, a screwdriver (§ 12022, subd. (b)). The court sentenced appellant to a prison term of 15 years to life for the murder, plus one year for the personal use enhancement. In 2019, appellant filed a petition for resentencing pursuant to section 1172.6 (former section 1170.95).2 The trial court appointed counsel for appellant and ordered the People to respond. In addition to arguing that section 1172.6 was unconstitutional, the People argued that appellant was ineligible for relief as a matter of law because he was the actual killer. At a hearing on the petition, appellant’s counsel conceded that appellant was the actual killer. The court concluded appellant was ineligible for relief under section 1172.6 and denied the petition. Appellant timely appealed, and we appointed counsel to represent him. On January 8, 2021, appellate counsel filed a brief raising no issues and asking us to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified appellant that he had the right to file a supplemental brief, but did not advise him in that letter that his