People v. Miller CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN450110
- Trial judge
- Daniel F. Link
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Julia C. Kelety (author), Laurence D. Rubin
Analysis
The trial court convicted Miller of two counts of forcibly resisting an executive officer and sentenced him to a determinate term of seven years and four months. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to a Wende brief, finding no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for two counts of forcibly resisting an executive officer (Pen. Code, § 69)“A jury convicted Miller of two counts of forcibly resisting an executive officer (Pen. Code, § 69).” | unclear | not reached | unsure The opinion is a Wende review where the court states it 'has not discovered any arguable issues for reversal on appeal.' It does not explicitly analyze the sufficiency of the evidence for the specific conviction counts, only noting that counsel identified potential issues which were considered and rejected. Therefore, the specific standard of review for the conviction itself is not articulated in the text, and the court's view is that the judgment stands. |
Sentence of seven years four months“The court sentenced Miller to a determinate term of seven years four months, considering the strike prior.” | unclear | not reached | unsure Similar to the conviction, the Wende brief process resulted in a general affirmation. The court does not provide a specific analysis of the sentencing calculation or the application of the strike prior in the discussion section, only affirming the judgment as a whole. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to independently review the record for error when no arguable issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential issues while arguing the appeal is frivolous.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the established Wende/Anders protocol for reviewing appeals where counsel finds no merit. However, it is a 'sound with gaps' assessment because it provides no substantive legal analysis of the specific factual disputes (e.g., location, identification, duration of resistance) raised by counsel, relying instead on a blanket statement that no arguable issues were found.
How this analysis was made · dispute it
unusual dispositionAfter a jury convicted Marshawn Boyd Miller of two counts of forcibly resisting an executive officer (Pen. Code, § 69) and he admitted a serious felony prior and a strike prior, the San Diego Superior Court sentenced him to a determinate term of seven years four months. On appeal, appointed counsel filed a Wende brief identifying three possible issues, Miller filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction on two counts of Penal Code section 69 (forcibly resisting an executive officer), including the three Anders issues flagged by counsel: adequacy of officer identification, whether the encounter occurred within the city park, and whether the roughly 30-second struggle sufficed for felony resisting“We have not discovered any arguable issues for reversal on appeal.” | substantial evidence | correct | agree with court The three issues counsel identified are sufficiency-of-the-evidence questions. The facts recited (uniformed officers, security guards reporting the park closed, Miller's statement that if touched they would have to kill him, drawing a knife, cutting an officer, resisting through two taser deployments and a baton) readily support a jury finding of forcible resistance under section 69, and the opinion's independent Wende review is the procedure Wende and Anders require. Because the opinion does not analyze the issues or describe the trial record beyond counsel's summary, I cannot independently verify sufficiency, but nothing in the opinion suggests error. |
Sentence of seven years four months based on the admitted strike prior under Penal Code section 667, subdivisions (b)-(i)“The court sentenced Miller to a determinate term of seven years four months, considering the strike prior.” | unclear | correct | unsure The opinion does not separately discuss the sentence; it was swept into the Wende independent review. A term of seven years four months is arithmetically consistent with a doubled upper term on one count plus a doubled one-third midterm on the second count under the Three Strikes law, and the opinion does not indicate whether the five-year section 667, subdivision (a) enhancement was imposed or stricken. Without the sentencing record, I cannot assess the sentence beyond noting nothing in the opinion signals an unauthorized term. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issue exists before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must so advise the court and file a brief referring to anything in the record that might arguably support the appeal, and the court must then conduct its own full examination of the record.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure: it recites the facts and procedural history, notes counsel's three possible issues, confirms the defendant was notified and did not file his own brief, and states the court independently reviewed the record and found no arguable issue. It offers no analysis of the three flagged issues, but no such analysis is required where the defendant files no supplemental brief, so the disposition is defensible on this record.
How this analysis was made · dispute it
record incompleteOpinion
Filed 7/2/26 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, D086510 Plaintiff and Respondent, (Super. Ct. No. SCN450110) v.
MARSHAWN BOYD MILLER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Daniel F. Link, Judge. Affirmed. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. This appeal is from a judgment after a jury trial. The charges arise from a confrontation with an Oceanside park ranger and several police officers who tried to get Marshawn Boyd Miller to leave a city park after hours, which efforts Miller violently resisted. A jury convicted Miller of two counts of forcibly resisting an executive officer (Pen. Code, § 69). Miller admitted a serious felony prior conviction and a strike prior, (§ 667, subd. (a) and 667, subds. (b)-(i)). The court sentenced Miller to a determinate term of seven years four months, considering the strike prior. Miller filed a timely notice of appeal.
Appellate counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to independently review the record for error as mandated by Wende. We notified Miller of his right to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS Appellate counsel has submitted a summary of the facts which we find helpful in reviewing this case. We will include the summary here for background. At around 2:40 a.m. on December 8, 2023, Oceanside park security guards encountered six to 10 individuals on a wooden landing inside Tyson Park. They were told that the park was closed between 6:00 p.m. and 6:00 a.m. and that they needed to find somewhere else to hang out. Most of them left but there were two individuals, Miller and a female companion, who remained on the landing. The woman was apparently trying to sleep and Miller was seated on a bench. The two did not comply with the orders to leave the park. The guards decided to give Miller some space so that he could gather up their possessions and move to the parking lot. However, after being unsuccessful with repeated attempts to get the two to leave the park, they were informed that police would be called if they did not leave. Oceanside police were subsequently summoned for assistance.
2 Oceanside police officers Johann Ravesi and Bernardo Romero responded and spoke to the security guards about the two individuals who refused to leave the park. Miller was wearing a bulky winter-weight full length trench coat and had a hat covering his face. He sat hunched over on the bench and would not look up or identify himself. After the woman eventually gathered her possessions, the officers escorted her out of the park. Miller told the uniformed police officers that he did not want to give his back up to them or turn his back to the police. He was informed that the law did not allow him to be in the park at that time of night. He was given the choice that he could leave or could be arrested for trespassing. When a third officer, Luke Sheehy, arrived and tried to reason with Miller he told the officers, “If you touch me, you’re going to have to kill me.” After about 10 minutes of not getting any compliance with their repeated orders to leave the park and taking his statement as an indication of “a pre-assaultive cue,” it was decided to place Miller under arrest. Sheehy took a hold of Miller’s right arm and Romero grabbed his left. Miller stood up and began twisting and thrashing around. Romero yelled out, “He has a knife.” Raversi fired a taser into the back of Miller’s trench coat. Possibly because of the multiple layers of clothing Miller had on the taser was judged to have been “minimally effective.” Romero used all his strength to secure Miller’s left hand that held the knife with the blade exposed. He received a cut on his wrist in the process.1 Sheehy pulled out a gun and ordered Miller to drop the knife. Miller replied that he had. The knife was later located across the platform under a bench. Miller was told to stay on the ground or he would be shot. Miller pointed to his forehead and said, “Shoot me right here.” He was hit with another taser dart, this time through an opening in the front of the 1 Romero testified that the cut was such that it did not require any treatment. 3 trench coat. He dropped to the ground and rolled on to his stomach. Miller then put his hands underneath him and held them there with such force that Sheehy had to use his baton to pry Miller’s arms free from under his body. It took the officers 30 seconds, with Miller screaming the whole time, to get his hands out from under him in order to place handcuffs on them. DISCUSSION As we have noted appellate counsel has filed a Wende brief and asks the court to independently review the record for error. To assist the court in its review and in compliance with Anders v California (1967) 386 U.S. 738 (Anders) counsel has identified three possible issues that were considered in evaluating the potential merits of this appeal. Whether there is sufficient evidence in the record to meet Miller’s contention the police did not identify themselves adequately. Whether there was sufficient evidence to show the exact location of the encounter was in the city park. Whether the 30-second encounter with police was sufficient to elevate resisting attest to a felony offense. We have independently reviewed the record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Miller in this appeal.
4 DISPOSITION The judgment is affirmed.
HUFFMAN, J.* WE CONCUR:
KELETY, Acting P. J.
RUBIN, J.
* Retired Associate Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 5
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12