People v. McGilberry CA1/2 ( 2022 )

Filed 12/21/22 P. v. McGilberry CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A165894
v.
DONNELL MCGILBERRY, (Alameda County Super.
Ct. No. 174406)
Defendant and Appellant.
Defendant Donnell McGilberry appeals from a judgment entered after
he was resentenced on one count of attempted robbery after two previous
appeals. McGilberry’s court-appointed counsel, L. Richard Braucher—an
experienced appellate advocate—has asked this court to independently
examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436(Wende) to determine if there are any arguable issues that require briefing.
McGilberry’s counsel informed him of his right to file a supplemental brief,
and he did not do so. We have independently reviewed the record in
accordance with our Wende obligations and find no arguable issues.
BACKGROUND
“On July 23, 2014, McGilberry was charged by information with: (1) the
April 26, 2012 murder of Coty Luster (Pen. Code, § 187, subd. (a))[1]; (2) the
1 Further undesignated statutory references are to the Penal Code.
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December 30, 2012 attempted second degree robbery of Steven Thong (§ 211);
and (3) carrying a loaded firearm on the person in an incorporated city in
connection with the attempted robbery (§ 25850). The information also
alleged that McGilberry personally and intentionally discharged a firearm
(§ 12022.53, subds. (b) & (c)) causing great bodily injury or death (§ 12022.53,
subd. (d)) in connection with count one, that he personally used a firearm in
connection with count two (§§ 12022.5, subd. (a) & 12022.53, subd. (b)), and
that the firearm was stolen and not registered to McGilberry in connection
with count three (§ 25850, subds. (c)(2) & (c)(6)).” (People v. McGilberry
(Jul. 24, 2018, A147924) [nonpub. opn.], pp. 3–4 (McGilberry I).)
A jury “found McGilberry guilty of second degree murder, attempted
robbery, and carrying a loaded firearm. The jury found all of the firearm
allegations true, with the exception of the allegation that McGilberry knew or
had reasonable cause to believe the firearm was stolen in connection with
count three. . . .
“McGilberry was sentenced to 15 years to life on the murder charge
plus 25 years to life for the firearm enhancement, for a total term of 40 years
to life on count one; 3 years for the attempted robbery plus 10 years for use of
a firearm on count two to run consecutive to count one; and 4 consecutive
months on count three, for a total sentence of an indeterminate term of
40 years to life plus a consecutive determinate term of 13 years, 4 months.”
(McGilberry I, supra, A147924, pp. 4–5.)
McGilberry appealed, and “[o]n July 24, 2018, we affirmed McGilberry’s
convictions but remanded the matter to the trial court to exercise its
discretion under the then-recent amendments to section 12022.53,
subdivision (h) enacted by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff.
Jan. 1, 2018), which granted sentencing courts the discretion to strike or
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dismiss certain firearm enhancements.” (People v. McGilberry (Mar. 16,
2022, A163578) [nonpub. opn.], p. 3 (McGilberry II); see McGilberry I, supra,
A147924, pp. 14−15.)
“On September 9, 2021, the trial court resentenced McGilberry on both
firearm enhancements. On the enhancement with respect to count 1, it
substituted the personal and intentional discharge of a firearm (§ 12022.53,
subd. (c)) and imposed a sentence of 20 years. On the enhancement with
respect to count 2, the trial court substituted the personal use of a firearm
(§ 12022.5) and imposed a term of four years. Thus, McGilberry’s new
sentence was . . . 35 years to life on count 1 (15 years to life plus the 20-year
firearm enhancement), seven years on count 2 (the upper term of three years
plus the four-year firearm enhancement), and the original four months on
count 3.” (McGilberry II, supra, A163578, pp. 3–4.)
McGilberry again appealed.
On March 16, 2022, we concluded that McGilberry was entitled to
resentencing on the attempted robbery count under two pieces of legislation
that became effective while his second appeal was pending: Senate Bill
No. 567 (Stats. 2021, ch. 731, § 1.3), which created a presumption that the
trial court will impose the middle term unless aggravating factors are found
true by the jury, and Assembly Bill No. 124 (Stats. 2021, ch. 695, § 5), which
created a presumption that the lower term will be imposed where the
defendant is under the age of 26 at the time of the offense.2 (See McGilberry
II, supra, A163578, pp. 5–8.) Accordingly, we vacated the sentence on the
attempted robbery count and remanded the matter “to resentence McGilberry
on count 2 under the current version of section 1170, subdivision (b) as
McGilberry was 19 years old at the time of the offense. (People v.
2
McGilberry, supra, A163578, p. 7.)
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amended by Senate Bill No. 567 and Assembly Bill No. 124.” (McGilberry II,
supra, A163578, p. 8.)
On July 15, 2022, McGilberry was resentenced. The trial court
indicated that it had met with counsel in chambers, and neither party had
any objection to imposing the low term on both the attempted robbery count
and the associated firearm enhancement.
Defense counsel asked the court, “based on the information I have
previously submitted,” to consider running the sentence on count 2
concurrently to the sentence on count 1. The prosecutor suggested that
imposing a concurrent sentence would be outside the scope of the remittitur,
which dealt only with whether to impose the lower, middle, or upper term on
count 2. The trial court indicated that if defense counsel wanted the court to
consider a concurrent sentence, it would require briefing on the issue and
would need to choose another date for sentencing. Defense counsel then
withdrew the request, and McGilberry indicated that he consented to doing
so.
The trial court resentenced McGilberry to the agreed-upon low term of
1 year, 4 months on the attempted robbery count and a consecutive low term
of 3 years for the enhancement for personal use of a firearm in connection
with that count, producing a new determinate sentence on count 2 of 4 years,
4 months.
McGilberry filed a notice of appeal.
DISCUSSION
We have reviewed the record on appeal for any arguable issues.
Our review of the record shows that the sentence imposed is authorized
by law, and McGilberry was represented by competent counsel who acted to
protect his rights and interests.
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We conclude there are no arguable issues within the meaning of
People v. Wende, supra, 25 Cal.3d 436.
DISPOSITION
The judgment is affirmed.
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_________________________
Richman, Acting P.J.
We concur:
_________________________
Miller, J.
_________________________
Van Aken, J. *
People v. McGilberry (A165894)
*Judge of the San Francisco Superior Court, Judge Christine Van Aken, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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