People v. Miller CA1/4

Filed 6/16/21 P. v. Miller CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A158431 v. HARRY WILLIAM MILLER, (Mendocino County Super. Ct. No. SCUK-CRCR-18-93826) Defendant and Appellant.

On March 26, 2018, while engaged in a verbal dispute with his neighbors over a shared driveway, defendant Harry William Miller shot one victim in the stomach and shot at but did not hit the other victim. Pursuant to a negotiated disposition, defendant pled guilty to one count of attempted voluntary manslaughter and one count of assault with a deadly weapon and admitted the related firearm enhancements. Consistent with the terms of his plea bargain, defendant was sentenced to 11 years 10 months in prison. On appeal, defendant contends the court erred by failing to consider defendant’s military-related posttraumatic stress disorder (PTSD) as a mitigating factor in sentencing as required by Penal Code1 sections 1170.9 and 1170.91. We find no prejudicial error and shall affirm the judgment.2

1 All statutory references are to the Penal Code. 2 Defendant has filed a habeas petition (A161385) asserting that if his trial attorney failed to properly raise and preserve this issue for appeal, that omission constitutes ineffective assistance of counsel. We shall resolve that petition by order filed concurrently with this opinion.

1

Background Defendant was charged with two counts of attempted first degree murder (§§ 664, 187, subd. (a)), while personally using a firearm (§ 12022.53, subd. (c)). Defendant’s wife was charged in the same information with being an accessory to attempted murder (§ 32.) During jury selection, criminal proceedings against defendant were suspended (§§ 1368, 1370). During the suspension, defendant’s wife was convicted in a jury trial and placed on probation. Her conviction was affirmed by this court on December 24, 2020. (People v. Miller (Dec. 24, 2020, A158166) [nonpub. opn.].) Following reinstatement of the criminal proceedings against defendant, he pled guilty to one count of attempted voluntary manslaughter (§§ 664, 192, subd. (a)), and one count of assault with a firearm (§ 245, subd. (a)(2)), and he admitted firearm use (§ 12022.5, subd. (a)) as to both counts. Defendant was advised that the aggregate maximum term of imprisonment under his plea was 17 years 10 months. In advance of the sentencing hearing, defendant submitted a brief arguing that while he was presumptively ineligible for probation under section 1203, subdivision (e), the interest of justice would be served by a grant of probation based on the unusual circumstances of this case. Defendant acknowledged that the shooting of his neighbor was not justified and was not a lawful act of self-defense. He argued, however, that the shooting should be viewed as an isolated incident of aberrant behavior in the context of an ongoing dispute between neighbors, including an incident just over a year before the shooting during which the neighbor pushed defendant to the ground, severely injuring his back. Defendant noted that he was 69 years old at the time of the shooting incident and that he is currently in poor health. He has been happily married for 37 years and has two adult children, all of whom would be adversely affected by a sentence of imprisonment. He has no prior criminal history. He served in the Navy for three years and was honorably discharged. He then worked as a fireman for many years before being promoted to fire captain, a position he occupied until his retirement. He also argued that at the time of the shooting, due to the ongoing dispute with the neighbors, he and his wife