P. v. Miller
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.
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