People v. McDonald CA5

Filed 12/3/20 P. v. McDonald 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079126 Plaintiff and Respondent, (Super. Ct. No. BF143850C) v.

MAXAMILLON LEE MCDONALD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Jeffrey D. Firestone and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Smith, J. and Meehan, J.

Defendant Maxamillon Lee McDonald stands convicted of two counts of robbery and active participation in a street gang. On appeal, he contends (1) the trial court erroneously imposed one $10 crime prevention program fine for each theft offense rather than one such fine for the case, and (2) the abstract of judgment erroneously fails to reflect his stayed sentence on count 3. The People concede both points. We ordered the parties to file supplemental briefing regarding whether defendant’s prior prison term enhancements should be stricken pursuant to Penal Code section 667.5, subdivision (b),1 as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The parties agree that defendant’s prior prison term enhancements should be stricken. We strike one of the two crime prevention fines, strike defendant’s two prior prison term enhancements, direct the trial court to prepare an amended abstract of judgment reflecting the modifications and correcting the error, and affirm in all other respects. PROCEDURAL SUMMARY On December 28, 2012,2 the Kern County District Attorney charged defendant with first degree murder during the commission of a robbery on a felony murder theory (§§ 187, subd. (a), 189, & 190.2, subd. (a)(17); count 1), robbery (§ 212.5, subd. (c); counts 2 & 4), and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). As to count 4, the information alleged that defendant inflicted great bodily injury (§ 12022.7). As to all counts, the information alleged defendant had suffered a prior felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), had suffered a prior serious felony conviction (§ 667, subd. (a)), and had served two prior prison terms (§ 667.5, subd. (b)). As to