People v. McClellan CA3

Filed 11/16/20 P. v. McClellan CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C088652

Plaintiff and Respondent, (Super. Ct. No. 17FE013971)

v.

LAMERREA MONTE MCCLELLAN,

Defendant and Appellant.

Defendant Lamerrea Monte McClellan appeals the trial court’s imposition of an upper term sentence for a personal use of a firearm enhancement. He argues the court did not consider mitigating factors and should have imposed the midterm sentence. We affirm the judgment. FACTS Defendant gave a firearm to J.P.’s son to commit a robbery of a family friend. When J.P. learned of the robbery, she took the gun from her son and gave it to the

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robbery victim. Defendant later went to J.P.’s home to retrieve the gun. On learning the gun had been given away, defendant used another gun to shoot J.P.’s car in the driveway. Eight shell casings were found throughout J.P.’s lawn and driveway. Defendant was charged with vandalism, discharging a firearm at an unoccupied vehicle, and being a felon in possession of a firearm. It was further alleged he personally used a firearm in committing the vandalism (Pen. Code, § 12022.5, subd. (a))1 and was had been released from custody when he possessed the firearm (§ 12022.1). Defendant pleaded guilty to all counts and enhancements before the start of his trial. The probation department report recommended a sentence of 13 years 8 months. The report detailed defendant’s prior record that included two juvenile felonies, two juvenile misdemeanors, two juvenile probation violations, and one adult felony. Defendant also was under a grant of probation for a gun offense when he committed the current crimes, was validated as a gang member in the past, and assaulted another inmate while in prison. The report listed no factors in mitigation and recommended defendant be sentenced to prison to serve the upper term of 3 years for vandalism, upper term of 10 years for the attendant personal use of a firearm enhancement, staying the sentence for the discharging a firearm count, and one-third the midterm of 8 months for firearm possession. The trial court sentenced defendant to serve 12 years 8 months in prison. Prior to sentencing, defendant submitted a statement in mitigation and his attorney made a lengthy argument in court requesting a sentence of six years eight months based on mitigating factors that included: the crime did not involve assault; his youthfulness at the time of the acts; he accepted responsibility by pleading guilty; and his adult record is limited. The court imposed the midterm for the vandalism count because it found