People v. McAllister CA4/1

Filed 8/15/24 P. v. McAllister CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082010

Plaintiff and Respondent,

v. (Super. Ct. No. SCS309864)

MARTELL DAVID MCALLISTER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Enrique Camarena, Judge. Affirmed in part, reversed in part and remanded for resentencing. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION This is an appeal from a judgment of conviction after a jury trial. Martell David McAllister raises three issues. He contends (1) his convictions must be overturned because the evidence identifying him as a perpetrator of the charged crimes was insubstantial, (2) his conviction for felon in possession of a firearm violates the Second Amendment, and (3) the sentences for his felon-in-possession convictions should have been stayed

pursuant to Penal Code section 654.1 The People concede McAllister’s sentence violated section 654. We agree and will reverse and remand for resentencing. We affirm the judgment in all other respects. PROCEDURAL BACKGROUND In December 2022, a San Diego County jury convicted McAllister of first degree robbery (§§ 211, 212.5, subd. (a)), first degree burglary with a person present (§§ 459, 460, subd (a), 667.5, subd. (c)(21)), and two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1)). McAllister admitted a prior serious felony conviction that was alleged to be a prior strike (§ 667, subds. (a)(1), (b)–(i)). He admitted two sentencing aggravating factors (§ 1170.12; Cal. Rules of Court, rule 4.421(b)(3)–(4)). In February 2023, the trial court sentenced McAllister to a total prison term of 10 years and eight months, consisting of the middle term of four years on the robbery count, doubled to eight years for the prior strike, and consecutive terms of eight months for each of the felon-in-possession counts, doubled to 16 months. The court stayed the sentence on the burglary count pursuant to section 654, but the court did not stay the felon-in-possession counts.