People v. McCraken CA2/5

Filed 3/22/23 P. v. McCraken CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B317688

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA075645) v.

GARY LOYD McCRAKEN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles A. Chung, Judge, and Lisa Strassner, Temporary Judge (pursuant to Cal. Const., art. VI, § 21). Affirmed. Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

On May 1, 2019, the District Attorney of Los Angeles County filed an information charging defendant Gary Loyd McCraken with assault with a firearm (Pen. Code, § 245, subd. (a)(2)1) (count 1); two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) (counts 2 and 3); dissuading a witness from testifying (§ 136.1, subd. (a)(1)) (count 4); and spousal battery (§ 243, subd. (e)(1)) (count 5). The information alleged defendant personally used a firearm in committing count 1 (§ 12022.5, subd. (a)) and a deadly and dangerous weapon in committing counts 2 and 3 (§ 12022, subd. (b)(1)). On June 27, 2019, the trial court granted the prosecution’s motion to amend the information by interlineation to add count 6—assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). Defendant then entered a conditional nolo contendere plea to count 6 pursuant to which his conviction would be reduced to a misdemeanor for time served if he completed the following conditions: stay away from the victim (a previously entered criminal protective order was to remain in full force and effect), pay restitution to the victim, enroll in and complete 52 weeks of domestic violence counseling, and not have any new contacts with law enforcement or new cases filed.2 If defendant failed to complete those conditions, his plea would be