People v. McGee CA3 ( 2023 )

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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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.
2 The court struck the firearm enhancement pursuant to section 1385, subdivision
(c)(2)(B).
2
DISCUSSION
Defendant contends he is entitled to remand for resentencing under Senate Bill
No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3), effective January 1, 2022.
Senate Bill No. 567 amended section 1170, former subdivision (b) to make the middle
term the presumptive sentence for a term of imprisonment unless certain circumstances
exist. (People v. Flores (2022) 73 Cal.App.5th 1032, 1038.) As relevant here, section
1170, subdivision (b)(6) provides that “unless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that imposition of the lower term
would be contrary to the interests of justice, the court shall order imposition of the lower
term if any of the following was a contributing factor in the commission of the offense:
[¶] . . . [¶] (B) The person is a youth, or was a youth as defined under subdivision (b) of
Section 1016.7 at the time of the commission of the offense.” Section 1016.7,
subdivision (b) defines “youth” as “any person under 26 years of age on the date the
offense was committed.”
The People argue that defendant’s claim has been forfeited because defendant
failed to object on this basis at the sentencing hearing. We agree. The trial court
sentenced defendant in August 2022, well after section 1170, subdivision (b) was
amended, and the absence of a specific objection based on Senate Bill No. 567 forfeits
the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-353.) In reply, defendant
concedes his claim may be forfeited but urges the court to address his argument’s merits
to preclude a claim of ineffective assistance of counsel. Defendant appears to be
referencing a future claim of ineffective assistance of counsel in collateral proceedings,
having not raised such a claim in the present appeal. In any event, defendant only
discusses ineffective assistance in his reply brief, and we do not consider contentions
asserted for the first time in a reply brief. (People v. Duff (2014) 58 Cal.4th 527, 550,
fn. 9 [finding waiver of an ineffective assistance of counsel claim raised for the first time
in reply brief].)
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DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
HORST, J.
 Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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