People v. McGee CA2/7

Filed 5/9/16 P. v. McGee CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B265244

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA126557) v.

DEMITRUIS T. MCGEE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William Ryan, Judge. Affirmed. Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and Appellant. Kama D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Arlene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

Demitrius McGee, convicted in 1996 for possession of a firearm by a felon and sentenced to a term of 27 years to life, petitioned for recall of his sentence pursuant to Penal Code section 1170.126. Finding McGee ineligible for relief because he was armed during the commission of the offense, the trial court denied the petition. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

McGee was convicted after a jury trial of being a felon in possession of a firearm in violation of Penal Code section 12021(a)(1)1 and sentenced, as a third strike offender (§§ 667, subds. (b)-(d), 1170.12), to a term of 27 years to life. On appeal, this court affirmed the judgment.2 In 2012, the electorate passed Proposition 36, the Three Strikes Reform Act of 2012 (Prop. 36), which, among other modifications of the Three Strikes Law, added section 1170.126 to the Penal Code to permit petitions for recall of sentences, and resentencing by individuals who would not have been subject to indeterminate life sentences had they been sentenced under Proposition 36. On December 3, 2012, McGee filed a petition for recall. The trial court issued an order to show cause, and the People filed opposition to the petition, asserting that McGee was ineligible for resentencing because he was armed during the commission of the offense, and that he was unsuitable for resentencing because of his record. After additional briefing by both parties, and a hearing at which McGee was represented by counsel, the trial court denied the petition on March 24, 2015, finding McGee ineligible. McGee appealed.