People v. McCarty CA3

Filed 4/19/16 P. v. McCarty CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C0C078172

Plaintiff and Respondent, (Super. Ct. Nos. CM038595, CM040871) v.

KENNETH GERALD MCCARTY, JR.,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). In case No. CM038595, a first amended information filed December 4, 2013, charged defendant Kenneth Gerald McCarty, Jr., with domestic violence (count 1; Pen. Code, § 273.5, subd. (a)).1 The information alleged that defendant personally inflicted

1 Undesignated statutory references are to the Penal Code.

1

great bodily injury (§ 12022.7, subd. (e)), making the crime a serious and violent felony, and that he had suffered a prior serious felony (§ 667, subd. (a)), two prior strikes (§ 667, subd. (d)), and two prior prison terms (§ 667.5, subd. (b)). In case No. CM040871, an information charged defendant with vandalizing the county jail (§ 4600, subd. (a)). On October 7, 2014, a jury convicted defendant of domestic violence in case No. CM038595 and found the great bodily injury enhancement true. In a bifurcated proceeding, the trial court found all the allegations as to defendant’s prior record true. On October 30, 2014, defendant pleaded no contest to the charge in case No. CM040871. The evidence at trial in case No. CM038595 showed that on April 21, 2013, defendant hit his wife, Jeri M., in the jaw, breaking it. The probation report in case No. CM040871, to which the parties stipulated as a factual basis for defendant’s plea, showed that on February 6, 2014, while defendant was incarcerated in Butte County Jail, he threw three bags of feces at the jail walls, which required a biohazard cleanup. After denying defendant’s request to strike his strike priors, the trial court imposed a consolidated sentence of 39 years to life in state prison, computed as follows: in case No. CM038595, 25 years to life on count 1, plus five years for the great bodily injury enhancement, five years for the prior serious felony, and one year for the prior prison term; in case No. CM040871, three years (the upper term), consecutive to the sentence in the other case. The court awarded defendant 414 days of presentence custody credit, erroneously reflected in the abstract of judgment as 338 actual days and 50 conduct days,2 in case No. CM038595, and 262 days of presentence custody credit (228 actual