Filed 12/3/20 P. v. McDonald CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079126
Plaintiff and Respondent,
(Super. Ct. No. BF143850C)
v.
MAXAMILLON LEE MCDONALD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Jeffrey D.
Firestone and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
Defendant Maxamillon Lee McDonald stands convicted of two counts of robbery
and active participation in a street gang. On appeal, he contends (1) the trial court
erroneously imposed one $10 crime prevention program fine for each theft offense rather
than one such fine for the case, and (2) the abstract of judgment erroneously fails to
reflect his stayed sentence on count 3. The People concede both points. We ordered the
parties to file supplemental briefing regarding whether defendant’s prior prison term
enhancements should be stricken pursuant to Penal Code section 667.5, subdivision (b),1
as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The
parties agree that defendant’s prior prison term enhancements should be stricken. We
strike one of the two crime prevention fines, strike defendant’s two prior prison term
enhancements, direct the trial court to prepare an amended abstract of judgment reflecting
the modifications and correcting the error, and affirm in all other respects.
PROCEDURAL SUMMARY
On December 28, 2012,2 the Kern County District Attorney charged defendant
with first degree murder during the commission of a robbery on a felony murder theory
(§§ 187, subd. (a), 189, & 190.2, subd. (a)(17); count 1), robbery (§ 212.5, subd. (c);
counts 2 & 4), and active participation in a criminal street gang (§ 186.22, subd. (a);
count 3). As to count 4, the information alleged that defendant inflicted great bodily
injury (§ 12022.7). As to all counts, the information alleged defendant had suffered a
prior felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)), had suffered a prior serious felony conviction
(§ 667, subd. (a)), and had served two prior prison terms (§ 667.5, subd. (b)). As to
1 All further statutory references are to the Penal Code unless otherwise stated.
2 All further dates refer to the year 2012 unless otherwise stated.
2.
counts 1, 2, and 4, the information alleged defendant committed the offense for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)).3
The jury found defendant guilty on all counts and found true all the gang
allegations. In a bifurcated proceeding, the trial court found true all the prior conviction
and prior prison term allegations. Defendant’s prior prison terms were served for a 2003
conviction of assault with a deadly weapon (§ 245, subd. (a)(1)) and a 2005 conviction
for evading a peace officer (§ 2800.2).
On September 17, the trial court sentenced defendant to life in prison without the
possibility of parole plus 12 years. The court also ordered defendant to pay restitution
and various fines, fees, and assessments.
On June 25, 2015, this court vacated the special circumstance finding and reversed
the conviction on count 1, but in all other respects affirmed. The matter was remanded
for further proceedings. (People v. McDonald (2015) 238 Cal.App.4th 16.)
On April 5, 2019, the prosecutor moved to dismiss count 1 because of a change in
the law.4 On the same date, the trial court dismissed count 1 and resentenced defendant
on counts 2 through 4. The court sentenced defendant to 24 years in prison as follows:
on count 2, 10 years (five years doubled to 10 years based on the prior strike conviction),
plus a 10-year gang enhancement, plus two one-year prior prison term enhancements; on
count 3, six years (three years doubled to 6 years based on the prior strike conviction),
stayed pursuant to section 654; and on count 4, two years, to be served consecutively to
3 The gang enhancement and enhancement for personal infliction of great bodily
injury were set aside prior to trial (§ 995).
4 Effective January 1, 2019, Senate Bill No. 1437 limited accomplice liability under
the felony-murder rule and the natural and probable consequences doctrine. (§§ 188,
189, as amended by Stats. 2018, ch. 1015, §§ 2–3; People v. Cruz (2020) 46 Cal.App.5th
740, 755.)
3.
the sentence on count 2.5 The court also ordered defendant to pay restitution, fines, and
fees, including $10 fees pursuant to section 1202.5 as to counts 2 and 4.
On the same date, defendant filed a notice of appeal.
FACTUAL SUMMARY
Defendant was an East Side Crips gang member.
On August 18, 2012, Patrice Oliver went to the grocery store. When she left the
store, defendant made eye contact and walked past her. Defendant then turned, grabbed
the back of Oliver’s neck and pulled the chains around her neck. Oliver fell to the
pavement and defendant dragged her about five feet while trying to pull several chains
off her neck. One chain broke and defendant was able to take another off Oliver. He
then ran.
On August 19, 2012, at about 5:30 p.m., 71-year-old Guadalupe Ramos began
shopping at a grocery store with her daughter and granddaughter. Ramos wore a thick
gold-linked chain with a gold cross. On the same day, approximately an hour later,
defendant and two other East Side Crips gang members entered the same store. When
Ramos, her daughter, and her granddaughter left the store, one of the East Side Crips
approached Ramos from behind, grabbed her by the neck and necklace, pulled the
necklace until it broke, and then took the necklace and ran. Ramos fell and hit her head
and back.
Defendant, parked several spaces away from where Ramos was robbed, pulled out
of the parking space and picked up the East Side Crip who robbed Ramos about two
blocks away from the robbery. Defendant and the two other East Side Crips then drove
to a business that purchased gold to sell the stolen necklace.
Meanwhile, Ramos developed an irregular heartbeat and died approximately an
hour after the robbery.
5 The amended abstract of judgment does not reflect the sentence on count 3.
4.
DISCUSSION
First, the parties agree, as do we, that the trial court erred in imposing two crime
prevention program fees for theft offenses pursuant to section 1202.5.
Section 1202.5, subdivision (a) requires a trial court to impose a $10 fee “[i]n any
case in which defendant is convicted of” a listed theft offense, including robbery. The
fine can therefore only be imposed once in any case. (People v. Crittle (2007) 154
Cal.App.4th 368, 371; see § 1202.5, subd. (a); see also People v. Knightbent (2010) 186
Cal.App.4th 1105, 1109 [section 1202.5 fines are “subject to the … additional
assessments, surcharge[s], and penalties, which the Legislature has expressly provided
must be added to any criminal fine”].) That must be imposed once per case, not once per
offense.
Although defendant was convicted of two counts of robbery (counts 2 and 4), only
one $10 fee was authorized pursuant to section 1202.5. Accordingly, we strike the
second $10 fee as unauthorized.
Second, defendant was sentenced to six years in prison, stayed, on count 3. The
abstract of judgment fails to reflect the sentence on count 3. An abstract of judgment
must include all felony counts of conviction, including stayed counts. (People v. Watts
(2009) 173 Cal.App.4th 621, 623, fn. 2.) Therefore, as the parties agree, the abstract of
judgment must be amended to reflect the stayed sentence on count 3.
Third, defendant argues his two prior prison term enhancements must be stricken
based on the retroactive application of Senate Bill 136. The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b)
to limit application of prior prison term enhancements to only prior prison terms that
were served for sexually violent offenses as defined by Welfare and Institutions Code
section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That
amendment applies retroactively to all cases not yet final on Senate Bill 136’s effective
5.
date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342, citing In re Estrada (1965)
63 Cal.2d 740, 742.)
Here, the trial court imposed two one-year section 667.5, subdivision (b) prior
prison term enhancements for terms served for convictions of assault with a deadly
weapon and evading a peace officer, neither of which is a sexually violent offense as
defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1,
2020, defendant’s case was not yet final. Therefore, as the parties agree, defendant is
entitled to the ameliorative benefit of Senate Bill 136’s amendment to section 667.5,
subdivision (b). We therefore strike defendant’s prior prison term enhancements.
Where an appellate court strikes a portion of a sentence, remand for “ ‘a full
resentencing as to all counts is [generally] appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018)
5 Cal.5th 857, 893.) However, where a trial court imposed the maximum possible
sentence, remand for the court to consider alternative sentencing options is unnecessary.
(People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
Here, the trial court imposed the maximum possible sentence6 and therefore
remand is unnecessary. Accordingly, we strike the five prior prison term enhancements
and direct the trial court to prepare an amended abstract of judgment.
DISPOSITION
The second $10 fee imposed pursuant to section 1202.5 is stricken. Defendant’s
two prison term enhancements (§ 667.5, subd. (b)) are stricken. The trial court is directed
to prepare an amended abstract of judgment, reflecting those modifications and the stayed
six-year term on count 3. The court shall forward a copy of the amended abstract of
judgment to the appropriate entities. As so modified, the judgment is affirmed.
6 The trial court’s imposition of one-third of the midterm sentence on count 4 was
the maximum sentence permitted. (§ 1170.1, subd. (a).)
6.