People v. Merideth CA2/1

Filed 6/26/24 P. v. Merideth CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B332708

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA154968) v.

DARRYL JOSHUA MERIDETH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Hector E. Gutierrez, Judge. Affirmed in part; reversed in part with directions. Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Tarlye and Lauren N. Guber, Deputy Attorneys General, for Plaintiff and Respondent. ___________________________________

A jury convicted Darryl Joshua Merideth of second degree murder and found he personally used a firearm to commit the murder within the meaning of Penal Code section 12022.5, 1 subdivision (a). The trial court then found as an aggravating circumstance that Merideth was armed with and used a weapon during the commission of the murder. The court sentenced Merideth to 15 years to life for the murder. Turning to the firearm enhancement, a finding pursuant to section 12022.5 generally carries a consecutive prison term of three, four, or ten years. However, section 1170.1, which governs enhancement sentencing, mandates the middle term unless certain aggravating circumstances exist. The trial court found that for purposes of the firearm enhancement, Merideth’s use of a weapon was an aggravating circumstance justifying the upper term. Accordingly, the court sentenced Merideth to the upper term of 10 years for the firearm enhancement, to run consecutive to 15 years to life for the murder. Merideth contends it was illegal to apply the facts of his gun use both to prove the elements of the firearm enhancement and to select the upper term under section 12022.5. Respondent concedes the point, and we agree. Accordingly, we will reverse the judgment for the limited purpose of resentencing. BACKGROUND On July 9, 2021, 25-year-old Merideth, a gang member, initiated a gun battle outside a marijuana dispensary with rival gang member Dequann Williams, who used crutches due to an