People v. McCart CA3

Filed 4/5/23 P. v. McCart CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096002

Plaintiff and Respondent, (Super. Ct. No. 21FE015487)

v.

JONATHAN L. MCCART,

Defendant and Appellant.

A jury convicted defendant Jonathan L. McCart of inflicting corporal injury on a cohabitant resulting in a traumatic condition, and assault by means of force likely to produce great bodily injury. Defendant stipulated to factors in aggravation. The trial court sentenced defendant to the upper term of four years, doubled to eight years for a prior strike conviction. In selecting the upper term, the trial court referenced the aggravating factors stipulated to and proven at trial. Defendant now contends the trial court did not adequately weigh mitigating and aggravating factors in imposing the upper term sentence. Because defendant did not assert this argument in the trial court, we will affirm the judgment.

1

BACKGROUND Defendant and his then-girlfriend, L.D., had a physical altercation in September 2021 while they lived together. After defendant argued with L.D. at a store, she got a ride home from a male friend. The next day, the argument continued, and defendant repeatedly pushed L.D., laid on top of her so she could not get up and leave, choked her so she could not breathe, and shoved her into and through a closet door. The People charged defendant with inflicting corporal injury on a cohabitant resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)1 -- count 1) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4) -- count 2). The amended information alleged that defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) for aggravated mayhem (§ 205) and criminal threats (§ 422). It further alleged various aggravating factors, such as that defendant had engaged in violent conduct that indicated a serious danger to society; that his prior convictions were numerous or of increasing seriousness; that he had served a prior term in prison; that he was on parole when he committed the present offenses; and that his prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(1)-(5)).2 The jury found defendant guilty as charged. Defendant waived a jury trial on the prior conviction allegations and the alleged aggravating circumstances. He admitted two prior felony convictions for aggravated mayhem and criminal threats and stipulated to the five aggravating factors alleged under rule 4.421(b)(1) through (5). At sentencing, defense counsel requested the low term, arguing the injuries inflicted were minor. The People urged the trial court to follow probation’s