Opinion
A161250
04-26-2021
THE PEOPLE, Plaintiff and Respondent, v. ZACHARY MORGAN HAGGARD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR2001871)
Defendant Zachary Morgan Haggard appeals his conviction following a trial at which a jury found him guilty of four felonies—two counts of assault with a semiautomatic weapon (Pen. Code, § 245, subd. (b)) and one each of shooting at an inhabited dwelling (§ 246) and possessing a firearm as a felon (§ 29800, subd. (a)(1)—and one misdemeanor, brandishing a firearm (§ 417, subd. (a)). The jury also found that, in the two assaults, defendant personally used a firearm (§ 12022.5, subds. (a), (d)). The court sentenced him to a total of 18 years eight months in prison.
Statutory references are to the Penal Code unless otherwise stated.
Defendant's appointed appellate counsel has submitted a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) requesting this court to make an independent review of the record, and has advised defendant of his right to submit a supplemental brief, which defendant has not done. This court's review of the record has revealed only one issue that warranted further briefing—the failure to impose a sentence on the misdemeanor conviction. After reviewing supplemental briefs requested to address the issue, this court has concluded that we must remand the matter for imposition of sentence on that count, while otherwise affirming the judgment.
The following evidence was presented at trial: On May 17, 2020, defendant was one of several people who gathered in the house of Beverly Spencer on Acacia Drive in Fortuna. Others present included Spencer's adult son Ted Sierra, Michael Wentworth, and Brandon Bisignani. Many of those present had a history of abusing substances; on May 17, defendant and others drank and smoked methamphetamine. Defendant was being rude, was cursing at people and, at some point in the evening, became verbally aggressive toward Spencer, who asked him to leave. Defendant pushed her and she enlisted one of the men present to help make him leave. Defendant, who was holding a black handgun, said not to push him, that no one "messes" with him, and that if he had to hurt someone, he would; he also threatened to kill Sierra. He then left the house.
Defendant later returned, banged on the door, and called for Sierra, who went outside. Defendant pointed his gun at Sierra's head, taunted him, and said that he was going to shoot him. Wentworth, wearing an unzipped hoodie, grabbed a baseball bat and went out to defend Sierra. He approached defendant and prepared to swing the bat but defendant turned and fired a shot at him. The bullet just missed Wentworth's body but left a hole in his hoodie. Wentworth and Sierra then retreated inside. After the initial gunshot and an interval of several seconds, those inside the house heard a further burst of gunshots and afterwards found a hole in a front window. After the shots were fired, defendant left.
The shots were fired shortly before 10:00 p.m. Around midnight, defendant arrived on foot at the home of his friend Floyd Hoisington, a "couple of miles" from Spencer's house, and asked to warm himself by a heater. Defendant dozed off briefly, awoke, and later showed a handgun to Hoisington, who recognized it as a semiautomatic .22 caliber pistol.
At a hearing outside the jury's presence pursuant to Evidence Code section 402, defense counsel elicited from Hoisington further potential testimony about how defendant told him that some people had tried to rob him earlier that night and were going to hurt him, so he had fired the gun in their direction to scare them off. The court tentatively ruled that such testimony would not be admissible under the excited-utterance exception to the hearsay rule, but that defense counsel could submit any authority to the contrary. Defense counsel did not do so.
Police officers found one casing ejected from a .22 caliber semiautomatic firearm in the area outside the house where Bisignani indicated that the confrontation had occurred, and six similar casings within a four-foot radius some thirty yards from the house.
The six-count information charged defendant with (1) attempted murder of Wentworth (§ 187, subd. (a); § 664), with a special allegation that he personally and intentionally discharged a firearm during the offense (§ 12022.53); (2)-(3) assaults with a semiautomatic firearm on Wentworth and on Sierra (§ 245, subd. (b)), with special allegations that he personally used a firearm in each offense (§ 12022.5); (4) shooting at an inhabited dwelling (§ 246); (5) possessing a firearm as a convicted felon (§ 29800, subd. (a)(1)); and (6) exhibiting in another's presence a concealable firearm, or unlawfully using such a firearm in a fight, in a public place (§ 417, subd. (a)(2)(A)). Defendant pled not guilty to all charges and denied all allegations, and the case proceeded to a jury trial.
In a jury-instruction conference, the prosecution confirmed that, based on the proof at trial, it had changed its theory of this charge to rest on defendant's act of displaying the gun to Spencer inside the house, rather than brandishing it outside while confronting Sierra. Accordingly, the court gave CALCRIM No. 983, an instruction for brandishing in violation of subdivision (a)(2)(B) of section 417, rather than for violation of subdivision (a)(2)(A), which applies only to conduct "in a public place."
The jury deadlocked on the attempted murder count, found defendant guilty on the remaining counts, and found true the allegations of personal firearm use in connection with both counts of assault with a semiautomatic firearm. The court granted the prosecution's motion to dismiss the charge of attempted murder.
The probation report recommended a prison term of 21 years four months, and defendant's attorney filed a mitigation statement. Defendant's attorney secured a continuance to file a supplemental mitigation statement, and defendant submitted a letter to the court. At the sentencing hearing, defense counsel requested a second continuance to file a further supplement, but the court denied the request, finding the supplemented statement sufficient. Although defendant was 25 years old at the time of the offenses, neither party requested the court to conduct a proceeding for the submission of evidence relevant to a future youthful-offender parole hearing. (See § 3051, subd. (a); People v. Franklin (2016) 63 Cal.4th 261, 277-278.)
At the outset of the sentencing hearing, the court indicated the prison terms it was tentatively inclined to impose on the felony counts and added, "if I don't impose time on the misdemeanor, then I have a term of fifteen years and eight months." Defense counsel proposed a concurrent sentence on the misdemeanor count. After hearing argument, the court sentenced defendant to 18 years eight months in prison on the four felony counts and ordered him to pay $5,350 in fines and assessments. However, the court did not impose sentence on count 6, the brandishing misdemeanor. The court imposed jail sentences of 85, 88, and 84 days on three trailing probation-violation matters and ordered that defendant's custody credits, which it calculated as to comprise 129 actual days served and 128 days pursuant to section 4019, be assigned to exhaust those three sentences.
The sentence comprised the upper term of nine years on the first count of assault with a semiautomatic firearm (§ 245, subd. (b)) plus the middle term of four years on the related firearm-use enhancement (§ 12022.5, subd. (a)), followed by consecutive terms of two years for the second count of assault with a semiautomatic firearm, plus 16 months on the related firearm enhancement; 20 months on the count of shooting at a dwelling; and eight months on the count of possessing a firearm as a felon. Each of the consecutive terms was one-third of the relevant middle term.
In summarizing the sentence, the judge said, "that creates a total term of eighteen years and four months as to all of the offenses." In fact, the terms that the judge had just imposed add up to 18 years eight months, as the abstract and minute order both say. In context, it seems clear that the judge either misspoke or incorrectly tallied the sums in his head; nothing suggests that he intended to impose a total sentence of 18 years four months rather than 18 years eight months.
The charges encompass a $5,000 restitution fine (§ 1202.4, subd. (b)); a $200 court operations assessment ($40 per conviction) (§ 1465.8), and a $150 criminal conviction assessment ($30 per conviction) (Gov. Code, § 70373). The court also imposed and suspended a $5,000 parole-revocation fine. (§ 1202.45.)
After this court requested supplemental briefs addressing whether we should remand with directions to impose sentence on count six, defendant's appellate counsel suggested that a remand would be futile under the reasoning of People v. Franks (2019) 35 Cal.App.5th 883, 892-893, and similar decisions in which the appellate court deemed it unnecessary to remand for the trial court to exercise newly conferred discretion to strike an enhancement because the trial court's remarks at sentencing indicated clearly that it would not strike the enhancement. Here, the trial court's remarks indicate the court is likely to make the misdemeanor sentence concurrent, but the sentence nonetheless must be imposed. (See Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 723-724.) On remand, the court may pronounce judgment on the misdemeanor count in appellant's absence if he knowingly chooses not to appear and his counsel so informs the court. (See § 1193, subd. (b); People v. Fedalizo (2016) 246 Cal.App.4th 98, 110.)
While this appeal was pending, defendant's appellate counsel sent a letter to the sentencing judge asking the court to correct an asserted 17-day error in the amount of presentence credits. Because appointed counsel filed a Wende brief raising no arguable issues on appeal, it was proper to direct the sentence-correction request to the trial court in the first instance. (See People v. Little (1993) 19 Cal.App.4th 449, 452; § 1237.1.) We assume the miscalculation has been corrected but, if not, the matter may be raised by a separate appeal. --------
Defendant filed a timely notice of appeal. His appointed counsel has filed a brief and a declaration indicating his determination that no viable issues exist to raise on appeal. This court's review of the record has not disclosed any such issues except for the trial court's failure to impose sentence on the misdemeanor conviction for brandishing a firearm (§ 417, subd. (a)(2)(B)). We will remand for imposition of sentence on that conviction. (See Hoffman v. Superior Court, supra, 122 Cal.App.3d at pp. 723-724.) On remand, the court may also conduct a Franklin proceeding (see People v. Franklin, supra, 63 Cal.4th at pp. 277-278, 283-284), should a party so request, to allow the parties to submit evidence to create a record for purposes of a future youthful-offender parole hearing pursuant to section 3051, subdivision (a)(1).
Disposition
The matter is remanded to the trial court with directions to impose sentence on count 6, brandishing a firearm (§ 417, subd. (a)(2)(B)). The court may also conduct a Franklin proceeding (see People v. Franklin, supra, 63 Cal.4th at pp. 277-278, 283-284), should a party so request. In all other respects, the judgment is affirmed.
POLLAK, P. J. WE CONCUR: STREETER, J.
TUCHER, J.