People v. McNeely CA6

Filed 1/26/22 P. v. McNeely CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048421 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C2008601)

v.

ANTONIO MCNEELY,

Defendant and Appellant.

After defendant Antonio McNeely entered a guilty plea to three counts, the trial court sentenced him to four years in prison. In this appeal, McNeely contends the trial court erred when it did not stay punishment pursuant to Penal Code section 6541 on two of the three counts. We disagree and affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND On June 16, 2020, McNeely asked his former girlfriend (S.B.) for a ride.2 When McNeely entered the passenger seat of S.B.’s car, he pointed a gun at her. She drove to her residence with McNeely, but attempted to stop him from entering. He struck her in the face with a closed fist. McNeely got into the driver’s seat and took $340 from S.B.’s pocket. He told her to exit the car and then fled. McNeely returned to the residence several minutes later.

1 Unspecified statutory references are to the Penal Code. 2 The facts as to the underlying offenses are based on the probation report.

S.B.’s current girlfriend called the police and informed them that McNeely was present at her home and was armed. During a search of S.B.’s residence, police found McNeely and a loaded black 9mm Glock handgun without a serial number. McNeely waived his Miranda3 rights. He told police that he and S.B. went to an ATM where S.B. gave him the pin code and permission to withdraw money. When they arrived at the residence, they had an argument and he left. He denied having knowledge of a firearm. Police found $340 in his possession. On June 19, 2020, the Santa Clara County District Attorney filed a felony complaint charging McNeely with robbery in the second degree (§ 212.5, subd. (c); count 1), owning, purchasing, receiving, and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), possession of ammunition by prohibited person (§ 30305, subd. (a)(1); count 3), and inflicting corporal injury on specified person (§ 273.5, subd. (a); count 4). The complaint further alleged one prior strike conviction and a prior serious felony conviction enhancement: ((1) § 1170.12; (2) § 667, subd. (a)(1)). On August 7, 2020, McNeely pleaded no contest to counts 2, 3, and 4, and admitted the prior strike under section 1170.12. In exchange, count 1 and the section 667, subdivision (a)(1) prior serious felony conviction enhancement were submitted for dismissal and McNeely agreed to receive a prison sentence of “4 years top/bottom.” In addition, the parties stipulated that counts 2, 3, and 4 were part of a “continuous course of conduct.” On August 27, 2020, the trial court sentenced McNeely to a prison sentence of four years, as follows: (1) four years on count 4 (low term of two years doubled); (2) a concurrent term of 32 months on count 2 (low term of 16 months doubled) and; (3) a concurrent term of 32 months on count 3 (low term of 16 months doubled). Count 1 and the section 667, subdivision (a)(1) prior serious felony conviction enhancement were