People v. McLaughlin CA5

Filed 2/18/16 P. v. McLaughlin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069501 Plaintiff and Respondent, (Super. Ct. No. F12909327) v.

LARRY DEAN MCLAUGHLIN, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell, III, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

INTRODUCTION On January 7, 2014, defendant Larry Dean McLaughlin, Jr., pled no contest to one count of assault with a deadly weapon (Pen. Code1, § 245, subd. (a)(1)), and admitted special allegations that he used a deadly weapon and caused great bodily injury to the victim. On April 22, 2014, the trial court denied probation and sentenced defendant to an aggregate term of six years in prison: two years for the assault, three years for the great bodily injury enhancement, and one year for the deadly weapon enhancement. On appeal, defendant argues (1) the trial court abused its discretion by denying defendant probation, and (2) the trial court erred by imposing the one-year enhancement for use of a deadly weapon. We strike the one-year enhancement, and affirm the judgment in all other respects. FACTS2 On November 6, 2012, Michael Montanez was riding his bicycle alongside the road when he heard the sound of released compressed air and felt a projectile strike him in the back. Believing he had been shot by a compressed air gun, Montanez called the police. As he did so, Montanez observed a vehicle drive away while a passenger in the vehicle pulled the barrel of a weapon inside. Police later identified defendant as the shooter. Montanez underwent spinal surgery to remove the projectile, which was lodged seven centimeters deep in Montanez’s back. Following his apprehension, defendant acknowledged shooting Montanez with a pellet gun, but stated he had been dared to do so by one of the other occupants in the car. Defendant was subsequently charged with assault by means likely to produce great bodily injury and assault with a deadly weapon. Both charges included allegations that