P. v. Miller
Filed 7/25/13 P. v. Miller CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ULYSSES GORDON MILLER,
Defendant and Appellant.
B244228
(Los Angeles
County
Super. Ct.
No. MA054832)
APPEAL
from a judgment of the Superior Court of
County, Hayden A. Zacky, Judge. Affirmed with directions.
Linda
Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
——————————
On October 13, 2011, Andre Fradiue was at his residence with several
acquaintances, including someone named Rico and defendant and appellant Ulysses
Miller. Miller and Rico got into an
argument. After Miller took out a gun
and put it on a table Fradiue told him he had to leave because he did not want
a gun in his house. Fradiue and Miller
went outside, where they “exchanged a couple of words†about Miller pulling his
gun out on people, and which of them was “tripping.†Miller, who had taken the gun outside with him,
became upset. Miller and Fradiue were
face-to-face, about seven feet apart from one another. Fradiue was not armed. Miller pointed his gun at Fradiue. Believing he could talk him down, Fradiue
moved toward Miller telling him he shouldn’t be tripping and asking why he was
pointing a gun at people. Miller said he
was going to get his other gun and come back and kill everybody. Miller shot Fradiue in the jaw and shoulder. Miller then told Fradiue he “knew [he] was a
bitch,†said he was going to get his “9,†and kill everyone and ran away.
Miller’s gun was double-barreled, with one barrel stacked
on top of the other. Both barrels fired
at the same time. A bullet from the top
barrel hit Fradiue’s jaw, and one from the bottom barrel hit him in the shoulder.
Evidence
of Miller’s affiliation with the “Goons,†a
allegations, as set forth below. Los
Angeles Sheriff’s Department Deputy Sheriff Welle and Detective Chung testified
as experts that Miller, also known as “Shawnie†or “Deshawn†Miller, is a
member of a criminal street gang and committed the crimes at issue to benefit
the gang. Deputy Welle’s partner had
located a video with Miller in it in which Miller associated himself with a
criminal street gang in the Antelope Valley. That video was uploaded to You Tube two weeks after the
shooting at issue here. Deputy Welle
testified that the Goons was a criminal street gang, and described the Goon gang’s common logo and
primary activities. He testified that
Miller was a member of the Goons based on his admissions of membership in that
gang in two videos. Deputy Welle also
testified that the offense in this case was committed because of disrespect
shown to Miller, an offense that benefited the gang.
Miller, who was 19 years old at the time of trial,
testified on his own behalf. He had
performed gangster rap since he was a kid and had been making music videos
since he was 16 years old. Fradiue had
done “a lot†of filming, subtitling and editing on Miller’s videos. On October 13, 2011, Miller had known Fradiue for about a month; he
had worked on a video for Miller. That
video was made in September 2010 and referred to “goons.†The “goons†reference did not refer to a
gang.
Fradiue invited Miller to a get-together at his apartment
on October 13, 2011. When Miller arrived there were six or seven
people at Fradiue’s home, including Rico with whom Miller had made videos. Fradiue and Rico were the only people Miller
knew. Fradiue invited Miller because he
wanted him to record with them. Miller
brought his laptop, microphone and recording equipment in a laptop bag. Miller did not bring any alcohol, but alcohol
was available at Fradiue’s house.
Miller stayed at the gathering for only 45 minutes
because things were being said that he did not want to participate in. Rico made remarks that began as jokes, but
began to escalate too far and it seemed that he was jealous and was targeting
Miller. Rico’s remarks were petty at
first, but led to him cursing and calling Miller a fake. Miller packed his things and left.
Miller
never put a gun on the table, and no one came outside with him when he
left. Miller did not speak to or argue
with Fradiue or Rico outside the apartment, and did not hear any gunshots
before he left. Miller never asked
Fradiue or Rico why they were “tripping,†never called Fradiue a bitch and
never said he was coming back to blow everyone away.
Miller
has never been a member of any gang, including the Goons.
The gun used in a video of Miller introduced
at trial was a double-barreled Derringer that belonged to his girlfriend’s
mother. It had no firing pin, and was
not operational. The weapon found by
police was the same gun.
Miller had spoken with Deputy Welle, but had not told him
the truth about what happened. He told
Welle the shooting occurred as self-defense
after someone tried to attack him.
Miller lied to Welle as a favor to London Jones, Miller’s codefendant in
another case. Jones had two strikes and
had somewhat threatened Miller to take the rap in this case in January
2012. Miller saw Jones arrive at
Fradiue’s party on October 13, just as Miller was leaving. Jones told Miller that Fradiue jumped into
the path of a bullet shot by someone else.
He also said Miller would be released from custody if he told the police
he had committed the shooting in self-defense.
Miller and Fradiue had had some disagreements about a
month before Fradiue’s party. Miller
decided not to use Fradiue in his videos after Fradiue was involved in an
incident of domestic violence with his girlfriend.
Miller was not in possession of any firearm at the time
of his arrest.
During rebuttal, Welle testified that he had tested the
double-barreled gun. The upper firing
pin worked perfectly. The bottom firing
hammer was broken, but worked when operated manually.
An
audio recording of Welle’s interview of Miller was played for the jury. During that interview Miller said a crew was
supposed to support him because he was homeless. The crew, which was jealous of Miller,
targeted him and forced him into a corner in many ways. Some of the people who had targeted Miller on
October 13 had had alcohol. Miller had a
“buzz,†but was not drunk. He had been
under a lot of stress which had built up to the point at which he felt he had
been targeted too often. By that night,
Miller was “just wasn’t having it anymore,†and had “got[ten] into it†with one
of the guys. Miller was called outside
and told to fight that person, but Miller did not want to fight. Miller had been carrying “something†that
night and “being stupid,†he pulled “it†out to scare the guy. However, the guy kept coming at Miller as if
to attack him, even after Miller told him to stop. Miller let a shot off to scare him and the
guy jumped as if to dodge the bullet, but jumped in its way instead. Miller thought he hit the guy, but was not
sure.
In
January 2012 Sergeant Owen went to a wash area in Lancaster after learning that Miller had been hanging out
there. Owen saw a man rummaging in a
plastic bag. The man ran when he saw
Owen. Owen’s search of the area yielded
a laptop computer bag containing documents bearing Miller’s name. The bag also contained a loaded Derringer .32
pistol and ammunition.
Miller
was charged by information with attempted willful, premeditated, deliberate
murder. (Pen. Code, §§ 664, 187;
The information also alleged that, (1) the offense was committed for the
benefit, at the direction of and in association with a criminal street gang
with the intent to promote, further and assist in criminal conduct by gang
members within the meaning of section 186.22, subdivision (b)(4); (2) Miller
personally and intentionally discharged a firearm which caused great bodily
injury within the meaning of section 12022.53, subdivision (d); (3) Miller
personally discharged a firearm within the meaning of 12022.53, subdivision
(c); and (4) Miller personally used a firearm within the meaning of section
12022.53, subdivision (b). Before trial,
a charge of assault with a firearm (§ 245, subdivision (a)(2); count 2) was
added, along with a special allegation that the offense was committed for the
benefit of, at the direction of and in association with a criminal street gang
with the specific intent to promote, further and assist in criminal conduct by
gang members (§ 186.22, subd. (b)(4)), and that Miller personally used a
firearm and inflicted great bodily injury (§§ 12022.5, subd. (a), 12022.7,
subd. (a)).
A
jury convicted Miller on both counts.
The special allegations that the attempted murder was committed
willfully, deliberately and with premeditation, and that Miller personally
discharged a firearm within the meaning of section 12022.53, subdivisions (b),
(c) and (d) were found true as to count 1, and the special allegation that
Miller personally used a firearm and inflicted great bodily harm was found true
as to count 2. The gang allegations as
to both counts were found untrue. Miller
was sentenced to life plus 25 years to life (count 1), and 17 years, stayed, as
to count 2 (§§ 12022.5, subd. (a)(1)
After examination of the record, Miller’s
appointed counsel filed a brief pursuant to People
v. Wende (1979) 25 Cal.3d 436 (Wende)
raising no issues, and asking this court to independently review the
record. The Wende brief contained a declaration from counsel stating that she
had reviewed the record, and had written to Miller advising him he could file a
supplemental brief if he chose to do so.
On March 28, 2013, we advised Miller he had 30 days within which to
personally submit any contentions or issues he wished us to consider. Miller filed a supplemental brief asking this
court to consider his contentions of error regarding discrimination; violation
of due process; insufficient evidence; verdict contrary to law or evidence;
instructional error; and newly discovered evidence of innocence.
DISCUSSION
Under
we find that Miller’s supplemental brief does not raise any arguable
issues. Miller’s challenge to the
allegedly discriminatory use of evidence to demonstrate his gang membership and
motive or proclivity to commit attempted murder finds no support in the record
in this matter. The jury rejected all
allegations that Miller’s crimes were committed for the benefit or direction
of, or in association with, a criminal street gang. Given the jury’s not true findings as to the
gang allegations, we reject Miller’s assertions regarding the discriminatory
and unduly prejudicial use of gang evidence.
Miller’s assertion that there is an absence of evidence of intent or
motive to commit attempted murder, and that the verdict is against the evidence
raise only sufficiency-of-the-evidence claims.
The evidentiary record is sufficient to support the jury’s verdict. His assertion regarding the existence of new
evidence is not part of the appellate record and is not cognizable on
appeal. (See People v. Smith (2007) 40 Cal.4th 483, 507.) It cannot be reviewed on this record. And Miller’s claim that the trial court
failed adequately to instruct the jury as to the elements of the charged
offense of attempted murder is belied by the appellate record. Miller asks that we construe the instant
appeal as a petition for writ of habeas corpus.
We decline the invitation, but do so without prejudice to his ability to
file an original petition.
We have
examined the entire record and are satisfied that Miller’s appellate counsel
has complied with her responsibilities and no arguable issues exist. (Smith
v. Robbins (2000) 528 U.S. 259 [120 S.Ct. 746, 145 L.Ed.2d 756];
pp. 109–110; Wende,
The
trial court is directed to amend the abstract of judgment as follows: The abstract shall reflect that the trial
court imposed and stayed an enhancement pursuant to Penal Code section 12022.5,
subdivision (a)(1). A copy of the
corrected abstract of judgment shall be sent to the
affirmed.
NOT
TO BE PUBLISHED.
JOHNSON,
J.
We concur:
MALLANO,
P. J.
ROTHSCHILD,
J.
name="_ftn1" title="">[1]
All statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]
In contrast with the reporter’s transcript, the abstract of judgment and minute
order state that an enhancement pursuant to section 12022, subdivision (a)(1)
was imposed. Conflicts between the
court’s oral pronouncement of judgment as reflected in the reporter’s
transcript and the clerk’s transcript are generally presumed to be clerical in
nature and are resolved in favor of the pronouncement as reflected in the reporter’s
transcript, unless the circumstances dictate otherwise. (People
v. Mitchell (2001) 26 Cal.4th
181, 185.) Here there are no
circumstances which suggest that the reporter’s transcript is in error; in
fact, the record indicates the transcript is correct, and there is no claim to
the contrary.
