People v. Miller CA2/4 ( 2021 )


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  • Filed 4/19/21 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                           B308504
    Plaintiff and Respondent,                                    (Los Angeles County
    Super. Ct. No. NA002100)
    v.
    ANTHONY MILLER,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court for Los Angeles
    County, Richard M. Goul, Judge. Appeal dismissed.
    Vanessa Place, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    No appearance for Plaintiff and Respondent.
    Defendant Anthony Miller appeals from the denial of his petition
    for resentencing under Penal Code1 section 1170.95. Defendant had
    1        Further undesignated statutory references are to the Penal Code.
    been convicted of second degree murder (§ 187, subd. (a)), and an
    allegation under section 12022, subdivision (b) that he personally used
    a deadly and dangerous weapon (a screwdriver) in the commission of
    the crime was found to be true. At the hearing on defendant’s section
    1170.95 petition, defense counsel conceded that defendant was the
    actual killer.
    Defendant’s appointed counsel on appeal filed a brief under People
    v. Wende (1979) 
    25 Cal.3d 436
     (Wende), stating that she found no
    arguable issues and asking that we independently review the record.
    On January 8, 2021, we sent a letter to defendant, informing him that
    his counsel filed an appellant’s opening brief that raises no issues and
    inviting him to submit a supplemental brief or letter within 30 days
    raising any contentions or arguments he would like the court to
    consider. We have not received any supplemental brief or letter from
    defendant.
    As explained by our colleagues in Division Two of this Appellate
    District, the procedures set forth in Wende, are not constitutionally
    required for appeals other than a criminal defendant’s first appeal of
    right. (People v. Cole (2020) 
    52 Cal.App.5th 1023
    , 1028, review granted,
    Oct. 14, 2020, S264278 (Cole).) We agree with the analysis in Cole and
    adopt the procedures it prescribed for appeals from the denial of
    postconviction relief. Under those procedures, if the defendant’s counsel
    files a brief indicating there are no reasonably arguable issues to
    present to the court, and the defendant does not exercise his or her
    right (after notice) to file a supplemental brief, we presume the order
    2
    appealed from is correct and may dismiss the appeal as abandoned. (Id.
    at pp. 1038-1040.) Accordingly, we will dismiss this appeal.
    DISPOSITION
    The appeal is dismissed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    WILLHITE, J.
    We concur:
    MANELLA, P. J.
    CURREY J.
    3
    

Document Info

Docket Number: B308504

Filed Date: 4/19/2021

Precedential Status: Non-Precedential

Modified Date: 4/19/2021