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People v. Miller6/18/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Pursuant to a plea bargain striking one Three Strikes prior, defendant Todd Russell Miller pled guilty to the felonies of possession of methamphetamine for sale and removal of a weapon other than a firearm from a peace officer, and the misdemeanors of being under the influence of methamphetamine and possession of a hypodermic needle. He also admitted another strike prior. After he received discovery of an internal affairs report, he moved to withdraw his plea. The motion was denied and defendant was sentenced to four years in state prison. On appeal, he challenges the trial court's exercise of discretion in denying that motion and a motion to strike the prior conviction he had admitted.
FACTS
Before defendant's original motion to strike the prior could be heard, Edward Mahler was substituted in as defense counsel. Mahler then filed a motion to withdraw the pleas of guilty and a motion for discovery of internal affairs police reports.
The original incident report stated that on January 15, 2001, Deputy Sheriff Chris Spurgeon was dispatched to an area where car alarms were being set off to contact two suspicious-looking men, one of whom had thrown a beer bottle or can to the ground. The one who was holding a half empty beer can under his coat identified himself as Pedro Cervantes. The other man, defendant, had no wallet or ID. Spurgeon conducted a pat search for weapons. A warrant check showed that Cervantes had no outstanding warrants but defendant had one from Santa Cruz County and Spurgeon was instructed to arrest defendant.
When Spurgeon told defendant to place his hands behind his back, defendant hesitated, so Spurgeon turned him around and pulled one arm behind his back. Defendant removed and replaced a cigarette pack in his pocket before placing his other arm behind his back. As Spurgeon sought out his handcuffs, defendant pulled his left arm away and placed it in his jacket pocket. As Spurgeon tried to place a control hold on defendant's right arm, defendant tightened up and grabbed the deputy's fingers. Spurgeon tried to bring defendant down to the ground. Defendant spun away and faced him and both men fell. Spurgeon's baton was underneath him and defendant was partially on top of him. The impact pushed the baton two thirds of the way out of its ring. It then came fully out of its ring, either because it fell out or defendant pulled it out. Defendant grabbed one end of the baton and attempted to lift it from under the deputy. Both men had hold of the baton. Spurgeon then kicked defendant in the face with his boot. Defendant did not release the baton and tried to roll on top of Spurgeon.
At that time, assisting Deputy M. Contreras ran up and yelled at defendant to drop the baton. He struck defendant on the leg with his baton, and Spurgeon was able to handcuff defendant. Spurgeon found a capped hypodermic needle and three plastic bags containing 13.6 grams of methamphetamine on defendant's person. Based upon defendant's dilated pupils, rapid speech and hot hands (and later confirmed by a blood test), Spurgeon believed defendant was under the influence of methamphetamine.
When defendant was placed in the police vehicle, he stated, " an you blame me? Facing 50 years to life for this." He also stated, " ou know I didn't grab your baton! . . . I just moved it off my knuckles!" Defen
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