People v. McGilberry CA1/2

BACKGROUND

On August 6, 2015, defendant Donnell McGilberry was convicted by a jury of the second degree murder of Coty Luster (Pen. Code, § 187, subd. (a))1 (count 1), attempted second degree robbery of Steven Thong (§ 211, 664) (count 2), and carrying a loaded firearm on the person in an incorporated city in connection with the attempted robbery (§ 25850) (count 3). (People v. McGilberry (July 24, 2018, A147924) [nonpub. opn.], pp. 3–4.) 2 The jury also found true certain firearm enhancements: with respect to count 1, the personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c), (d)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)), and with respect to count 2, the personal use of a firearm (§ 12022.5, subd. (a); 12022.53, subd. (b)). (People v. McGilberry, supra, A147924, pp. 3–4.) On February 1, 2016, the trial court sentenced McGilberry to an indeterminate term of 40 years to life plus a consecutive determinate term of 13 years, 4 months, calculated as follows: 15 years to life on count 1 plus 25 years to life on the firearm enhancement; the upper term of three years on count 2, plus 10 years for…