People v. McKenry CA5

Filed 11/13/14 P. v. McKenry CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F067660 Plaintiff and Respondent, (Super. Ct. No. F13903231) v.

MATTHEW ALEXANDER McKENRY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. Carol L. Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Detjen, J. and Franson, J.

STATEMENT OF THE CASE On April 11, 2013, Matthew Alexander McKenry (defendant) was charged by complaint with possession of a firearm by a felon (Pen. Code,1 § 29800, subd. (a)(1); count 1), possession of ammunition by a person prohibited from owning a firearm (§ 30305, subd. (a); count 2), carrying a concealed firearm on his person (§ 25400, subd. (a)(2); count 3), possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 4), possession of a firearm with identification numbers removed (§ 23920; count 5), and possession of a switchblade in a vehicle (§ 21510, subd. (a); count 6). It was further alleged he had served two prior prison terms. (§ 667.5, subd. (b).) On April 24, 2013, the parties entered into a plea agreement covering two cases, Nos. F13902897 and F13903231. It was agreed defendant would receive a maximum term of three years in the latter case, with sentences in the two cases to run concurrently.2 Defendant waived his right to a preliminary hearing, and his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. The court advised defendant of the consequences of an admission of guilt. Defendant pled no contest to count 1 and admitted serving two prior prison terms. The parties stipulated that if the court were to review the police reports, it would conclude there was a factual basis for the plea pursuant to People v. West (1970) 3 Cal.3d 595. The court found a knowing, intelligent, and voluntary waiver of rights and no contest plea. It found defendant guilty based on his plea, and dismissed the remaining counts and struck the section 667.5, subdivision (b) allegations on motion of the prosecutor, reserving to the People the right to comment thereon.