P. v. Miller

















Filed 1/17/13 P.
v. Miller CA4/3













>NOT TO BE PUBLISHED IN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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 THREE




>

THE PEOPLE, Plaintiff and Respondent, v. TRAVIS JOHN MILLER, Defendant and Appellant.

G045837 (Super. Ct. No. 10NF2101) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, M. Marc Kelly, Judge.
Affirmed.

David
L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and
Nguyen Tran, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant
Travis John Miller was found guilty of assault
with a firearm in violation of Penal Code section 245, subdivision (a)(2)
as charged in count one of the information.
(All further statutory references are to the Penal Code.) But the jury
returned a not true finding that defendant personally used a firearm when he
committed count one. He was also found
guilty of shooting at inhabited dwelling
house as charged in count two, and not guilty of attempted murder as
charged in count three.

The
court sentenced defendant to three years in state prison. He was awarded 440 days of actual custody
credits and 220 days for conduct credits.


In his
appeal, defendant contends there was insufficient
evidence to prove he “did anything to aid and abet the person who fired a
shot at the house.” Basically his
argument is, since the jury found it not to be true he personally used a
firearm, it necessarily decided he was not the perpetrator, and that the guilty
verdict means the jury found him guilty on an aiding and abetting theory. He also states he is entitled to additional
presentence custody credits pursuant to equal protection principles.

We find
sufficient evidence supports the jury’s guilty verdict on counts one and
two. We do not reach the decision
whether or not there was sufficient evidence to support defendant’s conviction
as an aider and abetter since there is sufficient evidence to support his
conviction as the perpetrator. We
further find he is not entitled to additional presentence custody credits. We affirm.

I

FACTS

Michael
Guevara lived on Perdido
Street in Anaheim on July 11, 2010. He had a male roommate
named Chris Wolf. Guevara and Wolf
argued over money. Afterward, Wolf left
on a skateboard. Ten minutes later, a
car drove by the house. Defendant was
sitting in the front passenger seat holding a gun. Also in the car were two other people, “a
White guy and, um, Chris.” The White guy
was driving, and defendant shot at Guevara after they pulled the car into the
driveway of the house.

The
15-year-old brother of Guevara, lived at the same house as Guevara. At the time of the shooting, he was by his
computer. He ran outside and saw a PT
Cruiser with a White guy driving.

The
14-year-old sister of Guevara, described what happened: “Well, I was sitting down in my mom’s
bedroom, and I heard my brother outside.
He was like arguing on the phone.
So I ignored that. So I turned on
the TV. And all of a sudden, I heard
like a loud bang. And I just got up in
my mom’s bedroom, and I saw Michael on the floor, and I got scared. And when I heard the loud bang, I — oh, My
God, I just ran out. And I told Michael,
‘What happened?’”

Deputy
Sheriff Doug Claypool was on duty on July 11, 2010,
working patrol for the City of Anaheim. At about 7:30
in the evening he was advised of a drive-by shooting. He went to the location and spoke with
Guevara who blurted out something to the effect that Travis and Wolf shot at
me. Guevara said a silver PT Cruiser
drove up the driveway, and “there was a White driver; that Travis was in the
front seat; and then Wolf was in the backseat.”
Guevara also told the officer “[h]e saw the person in the front, I guess
he’s identified as Travis, reach across the driver with a shotgun and fire one
shot.” Claypool inspected the area of
the shooting. He “saw numerous little
holes [which] appeared to come from birdshot around the windowsill area.”

Aaron
Brady, another deputy sheriff received a call at 7:50 p.m.
advising him there had been a shooting and the suspects were in a gray PT
Cruiser with a White male driver and a Black male passenger. Brady observed a gray PT Cruiser with a White
male driver and a Black male passenger, who he identified in court as
defendant. There was also a male sitting
in the backseat.

Claypool
took Guevara to a field identification.
At first, Guevara did not identify defendant, but Claypool said he moved
his vehicle because there was some shadowing and it was too far back. Guevara then said that Travis was the
shooter.

Orange
County Sheriff Investigator Truong Nguyen met with Guevara the evening of the
shooting. Guevara told Nguyen that
defendant was the person who shot the gun.
Guevara also told the investigator the other two occupants of the car
were Forest Hartman and Christopher Wolf, and that Hartman was the driver.

Orange
County Sheriff Investigator Chris Wax interviewed defendant on July 11, 2010. Defendant said his
girlfriend dropped him off at Hartman’s house and that he was pulled over
driving away from Hartman’s house. He
said he had a dispute with Guevara over money, but that he never got over to
Guevara’s house because the police stopped him before he could get there. Defendant denied being the shooter in the
instant shooting.

II

DISCUSSION

>Counts One and Two

Defendant
contends the evidence was insufficient to prove he did anything to aid and abet
the person who fired a shot at the house.
He adds the evidence established only that he was a passenger in the car
from which the shot was fired and his mere presence was insufficient to prove
he aided and abetted the shooter. The
Attorney General counters, there was sufficient evidence to support defendant’s
convictions for assault with a firearm and shooting at an inhabited dwelling,
and the not true finding on the personal use of a firearm enhancement does not
indicate he was convicted under an aiding and abetting theory.

In addressing challenges to the
sufficiency of evidence, “the reviewing court must examine the whole record in
the light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.
[Citation.] The appellate court
presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.
[Citations.] The same standard
applies when the conviction rests primarily on circumstantial evidence. [Citation.]
Although it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate
court that must be convinced of the defendant’s guilt beyond a reasonable
doubt. [Citation.] ‘“If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.
[Citation.]”’ [Citation.]” (People v. Kraft (2000) 23
Cal.4th 978, 1053-1054.)

“An
Acquittal of one or more counts shall not be deemed an acquittal of any other count.” (§ 954.)
It is well settled that, as a general rule, inherently inconsistent
verdicts are allowed to stand. (>People v. Palmer (2001) 24 Cal.4th 856,
860-861.) “An inconsistency may show no
more than jury lenity, compromise, or mistake, none of which undermines the
validity of a verdict.
[Citations.]” (>People v. Lewis (2001) 25 Cal.4th 610,
656.) The United States Supreme Court
has explained: “[A] criminal defendant
. . . is afforded protection against jury irrationality or error
by the independent review of the sufficiency of the evidence undertaken by the
trial and appellate courts. This review
should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the evidence review involves
assessment by the courts of whether the evidence adduced at trial could support
any rational determination of guilty beyond a reasonable doubt. [Citations.]
This review should be independent of the jury’s determination that
evidence on another count was insufficient.”
(United States v. Powell (1984) 469 U.S. 57, 67.)

“Defendant contends the evidence was insufficient to support
the convictions of attempted murder, robbery, assault with a firearm and felon
in possession of a firearm. The linchpin
of each argument is that, because the jury found ‘not true’ all of the personal
gun-use enhancement allegations, it necessarily found defendant guilty of the
attempted murder, robbery and assault with a firearm charges only as an aider
and abettor, and must have found that defendant only constructively possessed
the firearm for the felon in possession charge.
Stated in the converse, the jury must have found defendant was not the
direct perpetrator of any of the crimes.
He then argues the evidence was insufficient that he acted as an aider
and abettor or that he constructively possessed the firearm.” (People
v. Miranda (2011) 192 Cal.App.4th 398, 405.) The Miranda
court was not persuaded, finding that, under the inconsistent verdict
doctrine, the “not true” finding on the personal use enhancements does not
inexorably lead to a finding that defendant was not the direct perpetrator of
the substantive offenses. (>Ibid.)

We
do not know why the jury found defendant did not personally use a firearm in
committing counts one and two, but we conclude there is sufficient evidence to
support the jury’s guilty verdicts on both counts. Because there is sufficient evidence to
support defendant’s guilt as the perpetrator, we need not decide whether there
is also sufficient evidence to find he could have been guilty as an aider and
abetter as well.



>Presentence Custody Credits

Defendant
also contends he is entitled to additional presentence custody credits pursuant
to settled equal protection principles,
and that the October 1, 2011 amendment to § 4019 must be retroactively applied
to him. The Attorney General states that
equal protection does not compel retroactive application of the October
1, 2011
amendment to § 4019.

“The
concept of equal protection recognizes that persons who are similarly situated
with respect to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, “‘[t]he first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly
situated groups in an unequal manner.”’
[Citation.] ‘This initial inquiry
is not whether persons are similarly situated for all purposes, but “whether
they are similarly situated for purposes of the law challenged.”’ [Citation.]”
(People v. Brown (2012) 54
Cal.4th 314, 328.) “[T]he important
correctional purposes of a statute authorizing incentives for good behavior
[citation] are not served by rewarding prisoners who served time before the
incentives took effect and thus could not have modified their behavior in
response.” (Id. at pp. 328-329.)

Because
defendant committed his offenses on July 11, 2010, the Attorney General argues
he is not similarly situated to persons who committed their offenses on or
after October 1, 2011. The amended
statute states in relevant part: “The
changes to this section enacted by the act that added this subdivision shall
apply prospectively and shall apply to prisoners who are confined to a county
jail, city jail, industrial farm, or road camp for a crime committed on or
after October 1, 2011. Any days earned
by a prisoner prior to October 1, 2011, shall be calculated at the rate
required by prior law.” (§ 4019, subd.
(h); Stats 2011, ch. 15 § 482, operative October 1, 2011.)

“Defendant
has not cited a single case, in this state or any other, that recognizes anname="sp_7047_891"> name="citeas((Cite_as:_31_Cal.4th_179,_*188,_7">equal protection violation
arising from the timing of the effective date of a statute lessening the
punishment for a particular offense.
Numerous courts, however, have rejected such a claim—including this
court.” (People v. Floyd (2003) 31 Cal.4th 179, 188.)

>People v. Brown, supra, 54 Cal.4th 314,
considered an iteration of § 4019 that was in effect for eight months during
2010. (Id. at pp. 317-318.) In that
case, the California Supreme Court held “that equal protection does not require
former section 4019 to be applied retroactively.” (Id. at
p. 330.)

Except
for the specific statutory direction not to apply the October 1, 2011 amendment
to crimes committed prior to that date, the circumstances here are essentially
that same as they were in Brown. That is, the defendant had been sentenced
prior to the passage of an amendment to § 4019.
(People v. Brown,> supra, 54 Cal.4th at p. 318.) We
find no equal protection violation here.

III

DISPOSITION

The
judgment is affirmed.







MOORE,
J.



WE CONCUR:







O’LEARY, P. J.







THOMPSON, J.