People v. McKinley CA2/8

Filed 5/12/15 P. v. McKinley CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B257516

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA120046) v.

NATHANIEL MCKINLEY,

Defendant and Appellant.

APPEAL from the judgment of the Superior Court of Los Angeles County. Thomas I. McKnew, Jr., Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

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This appeal is from the resentencing hearing held May 22, 2014, following a partial reversal and remand from this court with directions to the superior court to hold a new sentencing hearing. (People v. McKinley (Nov. 22, 2013, B243916) [nonpub. opn.].) Defendant and appellant Nathaniel McKinley was convicted by jury of one count of first degree burglary. (Pen. Code, § 459.)1 In a bifurcated proceeding, defendant waived trial on the special allegations he had suffered three prior convictions that qualified as strikes under the “Three Strikes” law (§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)), and also qualified as serious felonies and prior prison terms under section 667, subdivision (a)(1), and section 667.5, subdivision (b), respectively. Defendant admitted the truth of the three prior felony conviction allegations, and also filed a motion requesting the court to strike two of the qualifying strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In the original sentencing proceedings held in July 2012, the trial court exercised its discretion pursuant to section 1385 to strike two of the prior strikes, and sentenced defendant as a second-strike offender. Defendant was sentenced to an aggregate state prison term of 17 years, calculated as follows. The court imposed the high term of six years on the burglary count, doubled to12 years due to the strike. The court identified, on the record, the aggravating factors supporting its decision to impose the upper term. The court then added one consecutive five-year term pursuant to section 667, subdivision (a)(1), explaining it had discretion to strike the other two 5-year enhancements. The court struck the special allegation concerning the one-year prison term priors, imposed various fines and fees, and awarded total presentence custody credits of 501 days. The People timely appealed from the July 31, 2012 sentencing order. Defendant obtained leave from this court to file a late notice of cross-appeal from the sentencing order. No challenge to the underlying judgment of conviction was made.