People v. Duggan CA3

Filed 3/5/24 P. v. Duggan CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C097888

Plaintiff and Respondent, (Super. Ct. No. CM041015)

v.

ROBERT DUANE DUGGAN,

Defendant and Appellant.

Defendant Robert Duane Duggan appeals following resentencing after the trial court struck a one-year enhancement for a previously imposed prior prison term and denied his request to dismiss a gun enhancement associated with his aggravated mayhem conviction. He raises two contentions: (1) his counsel was ineffective for failing to present the trial court with all resentencing options; and (2) we must direct the trial court to correct his custody credits. The People concede the custody credit error. We agree defendant is entitled to additional custody credit and therefore remand but otherwise affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant forced his way into the victim’s apartment, shooting him multiple times, causing the loss of an eye and other injuries. (See People v. Duggan, (Mar. 15, 2019, C079809) [nonpub. opn.] (Duggan I).) On April 30, 2015, a jury found defendant guilty of attempted murder, aggravated mayhem, possession of a firearm by a felon, and misdemeanor possession of cocaine. The jury also found that defendant personally and intentionally discharged a firearm causing great bodily injury in the commission of both the attempted murder and mayhem. The trial court found that defendant had served a prior prison term. On June 15, 2015, the trial court sentenced defendant to seven years to life for aggravated mayhem, plus 25 years to life for the firearm enhancement, plus a consecutive upper term of three years for his prohibited possession of a firearm, plus one year for the prior prison term, and a concurrent one year for the possession of cocaine. The trial court also imposed but stayed both the upper term of nine years for attempted murder and 25 years to life for the associated firearm enhancement. We affirmed this judgment. (Duggan I, supra, C079809.) Defendant petitioned the California Supreme Court, and it remanded with directions to vacate our decision and reconsider in light of People v. Lemcke (2021) 11 Cal.5th 644. We issued an opinion on transfer remanding for resentencing on issues related to defendant’s fines and fees. (People v. Duggan (Sept. 28, 2021, C079809) [nonpub. opn.] (Duggan II).) In that opinion, we also struck defendant’s prior prison term enhancement in light of the statutory changes brought about by Senate Bill No. 136 (2019-2020 Reg. Sess.) but determined that resentencing in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) was unnecessary because the trial court would not have stricken the firearm enhancement if it had had discretion to do so at the original sentencing. (Duggan II, supra, C079809.)