People v. McFadden CA3

Filed 3/29/24 P. v. McFadden CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C098423

Plaintiff and Respondent, (Super. Ct. No. 20FE003314)

v.

AKEIM RASHAD McFADDEN,

Defendant and Appellant.

Defendant Akeim Rashad McFadden appeals from a resentencing order in the trial court, following remand from this court. (People v. McFadden (July 28, 2022, C093218) [nonpub. opn.] (McFadden).) He contends the trial court failed to consider relevant Penal Code1 section 1385, subdivision (c), mitigating factors in refusing to strike defendant’s firearm use enhancements. Defendant also argues the trial court abused its discretion by

1 Undesignated statutory references are to the Penal Code.

1

finding dismissal of the firearm use enhancements would result in undue danger to the public without considering the length of his base term and the implications relative to defendant’s age and opportunity to rehabilitate himself before he is first eligible for parole. We conclude that defendant forfeited these claims by failing to raise them in the trial court. Defendant further contends the trial court erred in calculating his custody credits. The People concede the error, and we accept the concession. We will modify the judgment and affirm as modified. BACKGROUND A jury found defendant guilty of first degree murder, attempted voluntary manslaughter, and two counts of being a felon in possession of a firearm. (McFadden, supra, C093218.) The trial court found true the allegation that defendant was previously convicted of a strike offense and sentenced him to an aggregate term of 98 years to life in state prison. (Ibid.) In July 2022, this court vacated defendant’s sentence and remanded the matter for resentencing, finding “one of defendant’s convictions for firearm possession should have been stayed under section 654.” (McFadden, supra, C093218.) On remand, the trial court was directed to consider the amendments to section 1170 and our Supreme Court’s decision in People v. Tirado (2022) 12 Cal.5th 668. (McFadden, supra, C093218.) Prior to the resentencing hearing on remand, the People filed a sentencing memorandum in which they “agreed by stipulation to have . . . defendant resentenced to the midterm doubled for the attempted voluntary manslaughter conviction plus the midterm for the gun enhancement for a total . . . term of 10 years.” The People, however, opposed “any reduction or striking of the . . . section 12022.53 enhancement.” In support of their opposition, the People acknowledged our Supreme Court’s decision in Tirado and argued the trial court’s discretion to strike or reduce the firearm enhancement should be