People v. Miller CA4/1

California Court of Appeal · D081123 · 2023-04-17 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD285303
Trial judge: Peter C. Deddeh
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith D. McConnell, Buchanan

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:36Z · confidence low

The trial court revoked Miller's felony probation, denied his Marsden motion to relieve counsel, and committed him to state prison for a two-year term. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende and finding no arguable issues for reversal.

Ruling reviewed	Standard	The court	The model
Probation revocation and commitment to state prison “We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.”	unclear	not reached	unsure The opinion does not explicitly state the standard of review (substantial evidence) or provide a detailed analysis of the evidence supporting the revocation. It relies on the Wende/Anders framework to affirm the judgment without addressing the specific merits of the revocation finding in the text.
Denial of Marsden motion to relieve appointed counsel “We have not discovered any arguable issues for reversal on appeal.”	unclear	not reached	unsure The court lists the Marsden motion as a potential issue considered by counsel but does not provide any analysis or reasoning for why the denial was not an abuse of discretion. It simply concludes no arguable issues exist.
Imposition of middle term sentence “We have not discovered any arguable issues for reversal on appeal.”	unclear	not reached	unsure The court identifies the sentencing choice as a potential issue but provides no analysis regarding whether the trial court abused its discretion in selecting the middle term over the low term. The affirmation is based solely on the Wende review finding no arguable errors.

Authorities

relied: People v. Marsden (1970) 2 Cal.3d 118 — Standard for evaluating a defendant's motion to relieve appointed counsel (Marsden motion).
relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying arguable issues or, if none exist, to request the court to review the record for error.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues, even if meritless, and to request the court to review the record.

The appellate opinion: sound with gaps — The opinion is procedurally sound in following the Wende/Anders protocol for indigent appeals where counsel finds no arguable issues. However, it is substantively thin because it fails to provide the specific legal analysis or standards of review for the three issues identified by counsel, relying entirely on the court's independent review without explaining why those specific issues were meritless.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The trial court found Hugh Henry Miller violated felony probation (new offenses and possession of a concealed knife and a live rifle round), denied his Marsden motion, declined to reinstate probation, and sentenced him to the two-year middle term on his dirk-or-dagger conviction. 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
Finding that Miller violated probation (obey-all-laws condition and condition 6(a)/6(d) prohibiting knowing possession of firearms, ammunition, or weapons) “The court found Miller in violation of probation, specifically that Miller violated both the “obey all laws and violating 6(a) and 6(d), not knowingly possess firearm, ammunition, or deadly weapon.””	substantial evidence	correct	agree with court Two officers testified to finding a concealed fixed-blade knife in Miller's jacket pocket on July 7, 2022 and a live .223 round in his shorts pocket on July 29, 2022, and the court judicially noticed the probation condition barring knowing possession of weapons or ammunition. Probation violations need only be shown by a preponderance, and this direct testimony readily supports the finding; the court did not expressly state the standard but counsel framed the issue as substantial evidence and the court's record review found no arguable issue.
Denial of Miller's Marsden motion to relieve appointed counsel “The court also denied Miller’s motion to relieve appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118.)”	abuse of discretion	correct	unsure The opinion recites nothing about the content of the Marsden hearing or the grounds Miller asserted, so there is no basis in the opinion itself to independently evaluate whether the trial court heard and properly rejected his complaints. The Court of Appeal states it reviewed the entire record and found no arguable issue, which is the Wende procedure, but the opinion's silence on the facts leaves the point unverifiable from its text.
Denial of reinstatement on probation and imposition of the two-year middle term rather than the lower term “the court found there were no aggravating circumstances to justify the upper term but noted Miller’s lengthy criminal history in imposing the middle term over the low term.”	abuse of discretion	correct	agree with court Under Penal Code section 1170, subdivision (b), as amended, the middle term is the presumptive term; the lower term is mandated only where specified circumstances (such as youth or trauma) contributed to the offense and are not outweighed by aggravating factors, and nothing in the opinion suggests such circumstances were raised. The court declined to impose the upper term absent proven aggravating circumstances, which complies with section 1170(b)(2), and relying on a lengthy criminal history to choose the middle over the lower term is a permissible exercise of discretion; the refusal to reinstate probation after repeated weapon-related violations is likewise within the court's discretion.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no arguable issues, the Court of Appeal must independently review the entire record for arguable issues before affirming.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may so advise the court, and may identify anything in the record that might arguably support the appeal to assist the court's review.
relied: People v. Marsden (1970) 2 Cal.3d 118 — When a defendant seeks substitution of appointed counsel, the trial court must allow the defendant to state the reasons and may deny the motion absent a showing of inadequate representation or an irreconcilable conflict.

The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure correctly: counsel identified three potential issues, the defendant was invited to file a supplemental brief and did not, and the court reviewed the entire record and found no arguable issue, a defensible result on the facts recited (knife and live ammunition found on Miller, middle term imposed with no aggravating factors needed). It is thin, however, in that it recites no facts about the Marsden hearing and does not state the standards of review or explain why the identified issues lack merit, leaving the reader unable to verify those conclusions from the opinion itself.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 4/17/23 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, D081123

Plaintiff and Respondent, v. (Super. Ct. No. SCD285303)

HUGH HENRY MILLER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed. Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. This appeal follows a revocation of felony probation and a commitment to state prison. Hugh Henry Miller pleaded guilty to felony possession of a concealed dirk or dagger (Pen. Code, § 21310) and a misdemeanor possession of drug paraphernalia (Health and Saf. Code, § 11364). Miller was granted probation subject to a number of conditions. About a year later, the court summarily revoked Miller’s probation. Following a contested evidentiary hearing, the court found Miller violated probation on several grounds, including the filing of a new criminal complaint, case No. SCD295354. The court also denied Miller’s motion to relieve appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118.) The court declined to reinstate Miller on probation and committed him to prison for a two-year term. Miller filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to 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 review the record for error as mandated by Wende. We offered Miller the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS Counsel has provided an accurate summary of the facts relevant to the probation revocation. We will include those facts here for convenience. Charlotte Hess, an officer with the San Diego Police Department, testified that on July 7, 2022 she responded to a call for service at the Pearl Car Wash regarding a restraining order violation. Officer Hess arrived on scene and located Miller. Officer Hess made contact with Miller, placed him in handcuffs, and searched him. During the search a fixed-blade knife was located concealed in the left jacket pocket of Miller. This knife was similar to a kitchen knife. Jordan Vargas, an officer with the San Diego Police Department, responded to a call for service on July 29, 2022. Miller was contacted on scene by Officer Vargas. Officer Vargas determined there were outstanding warrants for Miller and eventually arrested him. During a search of Miller, 2 Officer Vargas located one live .223 rifle round in Miller’s front left shorts pocket. The trial court took judicial notice of the terms and conditions of probation for case No. SCD285303. A term and condition of probation was that Miller “not knowingly possess firearm, ammunition, or a weapon.” The court found Miller in violation of probation, specifically that Miller violated both the “obey all laws and violating 6(a) and 6(d), not knowingly possess firearm, ammunition, or deadly weapon.” On October 20, 2022, the court denied further probation and sentenced Miller to state prison. The court stated it would be “an exercise in futility to reinstate [Miller] on probation.” Further, the court found there were no aggravating circumstances to justify the upper term but noted Miller’s lengthy criminal history in imposing the middle term over the low term. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to 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. 1. Whether there was substantial evidence to support the finding that Miller violated probation. 2. Whether the court abused its discretion in denying Miller’s Marsden motion. 3. Whether the court abused its discretion in imposing a middle term sentence instead of choosing the lower term.

3 We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Miller on this appeal. DISPOSITION The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

BUCHANAN, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12
People v. Marsden Crim. 14119 · 1970-02-26