People v. McGilberry CA1/2

Filed 12/21/22 P. v. McGilberry CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A165894 v. DONNELL MCGILBERRY, (Alameda County Super. Ct. No. 174406) Defendant and Appellant.

Defendant Donnell McGilberry appeals from a judgment entered after he was resentenced on one count of attempted robbery after two previous appeals. McGilberry’s court-appointed counsel, L. Richard Braucher—an experienced appellate advocate—has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende) to determine if there are any arguable issues that require briefing. McGilberry’s counsel informed him of his right to file a supplemental brief, and he did not do so. We have independently reviewed the record in accordance with our Wende obligations and find no arguable issues. BACKGROUND “On July 23, 2014, McGilberry was charged by information with: (1) the April 26, 2012 murder of Coty Luster (Pen. Code, § 187, subd. (a))[1]; (2) the

1 Further undesignated statutory references are to the Penal Code.

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December 30, 2012 attempted second degree robbery of Steven Thong (§ 211); and (3) carrying a loaded firearm on the person in an incorporated city in connection with the attempted robbery (§ 25850). The information also alleged that McGilberry personally and intentionally discharged a firearm (§ 12022.53, subds. (b) & (c)) causing great bodily injury or death (§ 12022.53, subd. (d)) in connection with count one, that he personally used a firearm in connection with count two (§§ 12022.5, subd. (a) & 12022.53, subd. (b)), and that the firearm was stolen and not registered to McGilberry in connection with count three (§ 25850, subds. (c)(2) & (c)(6)).” (People v. McGilberry (Jul. 24, 2018, A147924) [nonpub. opn.], pp. 3–4 (McGilberry I).) A jury “found McGilberry guilty of second degree murder, attempted robbery, and carrying a loaded firearm. The jury found all of the firearm allegations true, with the exception of the allegation that McGilberry knew or had reasonable cause to believe the firearm was stolen in connection with count three. . . . “McGilberry was sentenced to 15 years to life on the murder charge plus 25 years to life for the firearm enhancement, for a total term of 40 years to life on count one; 3 years for the attempted robbery plus 10 years for use of a firearm on count two to run consecutive to count one; and 4 consecutive months on count three, for a total sentence of an indeterminate term of 40 years to life plus a consecutive determinate term of 13 years, 4 months.” (McGilberry I, supra, A147924, pp. 4–5.) McGilberry appealed, and “[o]n July 24, 2018, we affirmed McGilberry’s convictions but remanded the matter to the trial court to exercise its discretion under the then-recent amendments to section 12022.53, subdivision (h) enacted by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), which granted sentencing courts the discretion to strike or