People v. Miller CA4/2 ( 2023 )

Filed 5/1/23 P. v. Miller CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080485
v. (Super.Ct.No. BPR2201415)
KENNETH BRANDON MILLER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Sylwia Luttrell,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant Kenneth Brandon Miller appeals from a post-judgment order revoking
his parole upon his ninth violation of the parole condition requiring him to recharge his
Global Positioning System (GPS) device twice daily for one hour, which failure to
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recharge it rendered the device inactive. Defendant was sentenced to serve 180 days in
custody pursuant to Penal Code1 sections 3056 and 3010.10. Defendant’s counsel filed a
brief pursuant to procedures recommended in People v. Wende (1979) 25 Cal.3d 436(Wende)and Anders v. California (1967) 386 U.S. 738 (Anders). Defendant was given an
opportunity to file a supplemental brief on his own behalf but has not done so. We
affirm.
BACKGROUND
In 2004, defendant was convicted of a violation of section 314.1, indecent
exposure, for which he was placed on probation and ordered to register as a sex offender
pursuant to section 290.018, subdivision (b). He has been convicted twice of violating
section 290.018, subdivision (b) by failing to register, as well as one violation under
section 290, subdivision (g)(2).
Defendant’s parole on those charges has been violated nine times, including twice
in 2022 for failure to charge the GPS device, for which incarceration was imposed.
Defendant’s most recent incarceration ended on December 15, 2022, when he was
released on parole pursuant to certain special conditions of parole, one of which required
him to participate in continuous electronic monitoring (special condition, No. 46), and
another of which required him to recharge his GPS device twice daily, every 12 hours,
for one hour each time.
1 All further statutory references are to the Penal Code unless otherwise indicated.
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Upon defendant’s release from custody on December 15, 2022, the GPS device
was placed on defendant’s ankle and charged from 12:06 p.m. until 12:12 p.m. (six
minutes); he charged it again between 12:13 p.m. and 12:27 p.m., (14 minutes), and again
between 1:20 p.m. and 1:28 p.m. (eight minutes), for a total of approximately 30 minutes.
Because defendant is transient, he was advised he could recharge the device at the parole
office during business hours, or at a local business.
On December 15, 2022, at 07:54 p.m., defendant’s GPS device recorded a low
battery alarm on the device’s online database. At 11:10 p.m. the GPS device went into
“critical battery,” which meant the battery would soon be dead. At 2:04 a.m. on the
morning of December 16, Miller’s GPS device went into “dead battery.” When the GPS
device goes into dead battery it ceases to provide continuous electronic supervision,
rendering it inoperable. Defendant acknowledged hearing the audible sounds emitted at
the various stages of the battery’s loss of power.
At 10:15 a.m. on the morning of December 16, 2022, the parole officer took
defendant into custody for failing to maintain the charge on the device as required by his
parole conditions, rendering the device inoperable.
Following a hearing on the parole officer’s petition for revocation of parole, the
court granted the petition, found defendant had violated parole and remanded him to
custody for 180 days in county jail, with 49 days credit for time served.
Defendant appealed. Counsel was appointed to represent defendant on appeal and
that counsel filed a brief raising no issues. We gave defendant an opportunity to file a
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personal supplemental brief, and advised him the appeal could be dismissed if he failed to
file a supplemental brief, but he has failed to do so.
DISCUSSION
Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and
Anders, supra,386 U.S. 738, setting forth a statement of the case, a summary of the facts,
and potential arguable issues, and requesting that we undertake an independent review of
the entire record. We invited defendant to file a supplemental brief or letter and informed
him that failure to file a supplemental brief raising issues for review could result in a
dismissal of his appeal. Defendant has not availed himself of that opportunity.
Because this appeal is from a post-judgment order, Wende-Anders procedures,
which are applicable to direct appeal following a conviction, do not require us to read the
entire record to look for arguable grounds for reversal, although we have the discretion to
do so. (People v. Delgadillo (2022) 14 Ca1.5th 216, 228.) In the present case, an
independent review of the record has been conducted but no arguable issues have been
found. Defendant’s due process rights were honored during the proceedings in the trial
court, and he was not deprived of effective assistance of counsel.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
FIELDS
J.
RAPHAEL
J.
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