People v. McGee CA3

Filed 5/26/23 P. v. McGee CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C096832

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- 2022-0001618) v.

D’ANGELO L’APRIEST MCGEE,

Defendant and Appellant.

Defendant D’Angelo L’Apriest McGee appeals from his conviction for assault with a firearm with arming and great bodily injury sentencing enhancements. On appeal, he argues that in imposing the middle term for the assault conviction the trial court failed to consider that under Penal Code1 section 1170, subdivision (b)(6), the lower term was the presumptive sentence due to defendant’s age at the time of his offense. We affirm.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND A jury found defendant guilty of assault with a firearm under section 245, subdivision (a)(2). In a separate proceeding, the jury further found true that defendant personally used a firearm during the commission of the offense (§ 12022.5, subd. (a)) and inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). The facts of the offense and trial are not relevant to the legal issues raised by this appeal other than the undisputed fact that defendant was 24 years old at the time of the offense. On August 22, 2022, the trial court sentenced defendant to six years in prison. In its tentative ruling, the trial court explained it intended to impose the middle term of three years for the assault with a firearm conviction (§ 245, subd. (a)(2)) and an additional three years for the great bodily injury enhancement (§ 12022.7, subd. (a)).2 As to aggravating circumstances, the court noted defendant’s crime involved great violence, great bodily injury and other factors disclosing a high degree of cruelty, viciousness, and callousness (Cal. Rules of Court, rule 4.421(a)(1)); defendant was armed with and used a firearm at the time of the commission of the crime (Id., 4.421(a)(2)); and the victim was particularly vulnerable (Id., 4.421(a)(3)). In mitigation, the court explained that there were indications defendant was provoked (Id., 4.423(a)(2)); that the crime was committed in an unusual circumstance that was unlikely to recur (Id., 4.423(a)(3)); and that defendant had no prior criminal record (Id., 4.423(b)(1)). At the conclusion of the hearing, the trial court adopted its tentative ruling and sentence without modification.