Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA080646. William P. Barry, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Near midnight on August 13, 2005, three Los Angeles sheriff’s deputies riding in a patrol car heard gunshots and saw two cars go by in what appeared to be a high speed chase. The deputies turned on their lights and siren and pursued the second of the two cars. The driver, Theodore Millender, did not stop and instead continued driving at high speed. He then pointed a gun out a window and fired several shots at the pursuing officers. One deputy fired back several times. Millender eventually stopped the car and tried to run away. Millender turned and raised a gun as if to fire at one of the deputies. That deputy fired a shot, but missed. Millender ran off, but with the help of a police dog, Millender was found hiding nearby.
Millender was charged with three counts of attempted murder of a peace officer (counts 1-3), possession of a firearm by a felon (count 4), and evading a peace officer with willful disregard (count 5). Enhancements for gun use (Pen. Code, § 12022.5, subd. (a)) and a prior conviction were also alleged. The information was later amended to add counts 6, 7, and 8 for assault with a deadly weapon upon a custodial officer (Pen. Code, § 245.3), and count 9 for shooting at an occupied car.
All further section references are to the Penal Code.
The jury acquitted Millender of the first three counts of attempted murder, but convicted him of the others. However, the deputies were peace officers, not custodial officers. Although the jury was instructed on assault with a firearm on a peace officer, the verdict form remained consistent with the information and called for the jury to determine whether it should convict Millender of assault on custodial officers.
The trial court imposed the five-year high term on count six, plus the 10-year consecutive high term for the gun use enhancement. It also consecutively sentenced Millender as follows: two years and eight months on counts 7 and 8 each, based on one-third the mid-term of both the substantive offense and the gun use enhancement; one-third the mid-term (eight months) on counts 4 (felon in possession of a firearm) and 5 (evading a peace officer), and one-third the mid-term (one year and eight months) on count 9 (shooting at an occupied vehicle). The court chose consecutive sentences because Millender’s crimes involved both great violence and multiple victims. As a result, Millender’s sentence was 24 years, four months.
Millender appealed. We reversed because there was no evidence the deputies were custodial officers, and remanded for full resentencing, with directions to convict and resentence on the lesser included offenses of either assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)), or of assault with a firearm. (§ 245, subd. (a)(2).)
The record on this appeal does not contain the facts of the crimes charged and includes only minimal information about the underlying procedural history. The facts concerning the offenses and the procedural events from the first trial are taken from our earlier decision. (People v. Millender (Sept. 23, 2008, B198106) [nonpub. opn.].)
Millender’s first appeal also raised several purported sentencing errors related to the improper dual use of facts to support a high term sentence, a gun use enhancement, and consecutive sentences. Although the issues were moot, we offered the following guidance for the trial court: (1) an upper term could not be imposed by using the fact of any enhancement upon which sentence is imposed; (2) as long as at least one aggravating factor is established by means that satisfy the constitutional confrontation clause, the high term is proper; (3) under People v. Calhoun (2007) 40 Cal.4th 398, 406, the Supreme Court held that conviction of separate counts naming separate victims supports imposition of the high term based on the presence of multiple victims; and (4) a single prior conviction makes a defendant eligible for the high term.
On remand, the trial court changed the counts 6-8 convictions of firearm assault on custodial officers to assault with a firearm under section 245, subdivision (a)(2). The high term of four years was imposed on count 6, with Millender’s prior conviction used as an aggravating factor that justified the upper term. (Cal. Rules of Court, rule 4.421(b)(3).) The high term of 10 consecutive years was imposed on the count six gun use enhancement, based on the great violence of Millender’s offense as an aggravating factor. (Rule 4.421(a)(1).) On counts 7 and 8, one-third the mid-term was imposed for the assaults (one year each), and for the gun use enhancements (one year, four months each). A sentence of one-third the mid-term of eight months was imposed as to both count 4 (felon in possession of a firearm) and count 5 (evading a pursuing peace officer). Sentence on count 9 (shooting at an occupied vehicle) was stayed under section 654. The trial court said it would again impose consecutive sentences for the same reasons stated at the original sentencing hearing. As a result, a combined state prison term of 20 years was imposed.
All further rule references are to the California Rules of Court.
Millender appealed from the new sentence. On November 30, 2009, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The brief included a declaration from counsel that he had reviewed the record and had sent Millender a letter advising him that such a brief would be filed and that he could file a supplemental brief if he chose to. That same day, this court sent Millender a letter advising him that a Wende brief had been filed and that he had 30 days to submit a brief raising any issues he wanted us to consider. Millender responded by filing nearly verbatim excerpts from his trial counsel’s resentencing memorandum that Millender copied by hand.
We have examined the entire record and considered the contents of Millender’s supplemental papers, and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: FLIER, J. GRIMES, J.