P. v. Miller
Filed 12/4/09 P. v. Miller CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. SHAWN ROBERT MILLER, Defendant and Appellant. | D054614 (Super. Ct. No. SCN249261) |
APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed.
A jury convicted Shawn Robert Miller of one count of felony vandalism (Pen. Code, 594, subds. (a), (b)(1)) and resisting a peace officer (id., 148, subd. (a)(1)). Outside the presence of the jury, Miller admitted he had suffered a prison prior within the meaning of sections 667.5, subdivision (b), and 668. The trial court sentenced Miller to three years in prison.
FACTS
On August 2, 2008, Shawn Robert Miller, a parolee, was walking north on the west side of Highway 101 in Solana Beach. Ginger Hill was riding her bicycle north on the east side of Highway 101 and observed Miller throw his skateboard down, jump from the sidewalk onto the hood of a white convertible BMW automobile, and smash his foot into the car's windshield about three or four times until the windshield was shattered. Hill then observed Miller jump off the vehicle, throw his skateboard into the street, punch and kick at the air and shrubbery, and yell and curse to himself. Miller proceeded north on Highway 101 until he came to the corner where Roberto's Taco Shop is located; Miller sat at that location until Sheriff's deputies arrived and placed him under arrest. Miller appeared agitated, smelled of alcohol, and had slurred speech and bloodshot eyes. He appeared to be under the influence of alcohol.
Sheriff's deputies examined the damaged BMW and noticed on the hood partial shoeprints that matched Miller's shoes. The cost to repair the windshield was later determined to be $428; the repair estimate for the vehicle's hood was $759.
Miller was transported to the Sheriff's station, where he was placed in a detention cell. There, Deputy Sheriff Brunk sought to ask Miller some questions for his report but, after observing Miller's behavior, determined Miller might be under the influence of something more than just alcohol. Brunk told Miller that a blood sample was needed from him. Miller did not agree and became more agitated and angry, stating he was going to refuse to cooperate with deputies. Brunk gave Miller time to calm down, but he did not do so. Deputy Brunk informed Sergeant Ramirez that Miller was not willing to cooperate, and Sergeant Ramirez also told Miller of the need to collect a blood sample. Miller removed his shirt, performed boxing and karate-type kicking movements in his cell, and challenged Deputy Brunk and Sergeant Ramirez to fight. A verbal warning was issued, after which Deputy Brunk deployed his taser against Miller. Miller was placed into a restrained position, and a blood sample was collected by a phlebotomist. The deputies did not offer Miller the option of taking a urine test.
At trial the parties stipulated Miller's blood alcohol concentration was 0.24; the blood sample was negative for the presence of narcotics.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence produced in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether the jury was properly instructed as to what constitutes a peace officer acting lawfully and within the scope of his duties; (2) did the trial court err in determining that, in the absence of a warrant, Miller, a parolee, was subject to a compulsory blood draw; and (3) could a jury have found that an officer acted unlawfully or not within the scope of his duty by forcing Miller to submit to a blood test, when a less intrusive method, namely a urine test, was available?
We granted Miller permission to file a brief in his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Young on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McDONALD, Acting P.J.
McINTYRE, J.
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