P. v. Miller
Filed 7/13/09 P. v. Miller CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Trinity)
----
THE PEOPLE, Plaintiff and Respondent, v. BRIAN HARLEY MILLER, Defendant and Appellant. | C060433 (Super. Ct. Nos. 05F014, 06F121) |
From October 1, 2004, through February 6, 2005, defendant Brian Harley Miller took checks from D.R. and forged and passed them at various stores without her authorization. In case No. 05F014, defendant entered a negotiated plea of no contest to embezzlement from an elder or dependent adult in an amount exceeding $400 (Pen. Code, 368, subd. (d); undesignated section references are to this code), in exchange for no state prison at the outset and dismissal of the remaining counts ( 368, subd. (e); 487, subd. (b)(3); 504; and five counts, 470, subd. (a)) with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. For purposes of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and to justify an aggravated term of four years in the event he violated probation, defendant admitted that he forged and passed multiple checks, separate victims were involved, and that the amount of money totaled over $1,200. The court suspended imposition of sentence and granted probation for a term of three years subject to certain terms and conditions including 110 days in jail.
Defendant admitted that he failed to contact the probation officer. Probation was revoked and reinstated subject to an additional 30 days in jail.
On July 30, 2006, defendant assaulted his live-in girlfriend causing visible injuries. A complaint filed in case No. 06F121 charged defendant with corporal injury to a cohabitant ( 273.5), and alleged that he inflicted great bodily injury ( 12022.7, subd. (e)). Defendant entered a negotiated plea of guilty in exchange for dismissal of the special allegation, no state prison at the outset, and six months in county jail as a condition of probation. Defendant agreed to an aggravated term in the event he violated probation. The court suspended imposition of sentence and granted probation for a term of three years subject to certain terms and conditions including 90 days in jail, outpatient treatment, and a 52-week batterers treatment program. Defendant also admitted violating probation in case No. 05F014 as a result of his plea. Probation was continued.
On February 8, 2007, defendant failed to appear in court for a domestic violence review hearing and the court issued a bench warrant. A petition for violation of probation filed on March 5, 2007, in case No. 06F121 alleged that defendant failed to pay fines and fees, contact the probation officer, and show proof of enrollment in the batterers program. A petition for violation of probation filed on March 8, 2007, in case No. 05F014 alleged that defendant failed to pay fines and fees and contact the probation officer.
On September 6, 2008, defendant was arrested on bench warrants in Idaho. On October 15, 2008, defendant admitted that he violated probation in each case by failing to report to his probation officer.
The court sentenced defendant to state prison for an aggregate term of four years: the upper term of four years for cohabitant abuse in case No. 06F121 and a concurrent midterm of three years for the embezzlement offense in case No. 05F014.
Defendant appeals. He did not obtain a certificate of probable cause ( 1237.5).
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
Disposition
The judgment is affirmed.
HULL, J.
We concur:
SCOTLAND , P. J.
ROBIE , J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line Lawyers.
