People v. Miller CA2/5

INTRODUCTION

A jury convicted defendant and appellant Michael Miller of two counts of first degree robbery in violation of Penal Code section 211.1 The jury found true the allegation that defendant personally used a firearm in the commission of the robberies. (§ 12022.53, subd. (b).) The trial court found true the allegations that defendant suffered six prior felony convictions within the meaning of section 667, subdivision (a) and the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and that he served four prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to a term of 46 years to life in state prison. We affirmed defendant’s judgment on appeal. Following the November 2012 passage of Proposition 36 and the enactment of section 1170.126, defendant filed a petition for writ of habeas corpus seeking resentencing under Proposition 36. The trial court treated the habeas petition as a petition for a recall of defendant’s sentence under section 1170.126 and denied the petition with prejudice because one (actually both) of defendant’s current convictions was for first degree robbery which is a violent felony under…