People v. Hemsley CA4/2

I.

INTRODUCTION

James M. believed defendant and appellant David Hemsley was having an affair

with his girlfriend. The two men engaged in a fistfight, leading to defendant firing two

shots at James, one of which hit him in the chest.

A jury found defendant guilty of unlawful possession of a firearm by a felon

(count 2), unlawful possession of ammunition by a felon (count 3), and assault with a

semiautomatic firearm (count 4). The jury also found true allegations that defendant

personally used a firearm and inflicted great bodily injury (GBI) in the commission of the

assault. In addition, the jury found that defendant had a prior burglary conviction, which

qualified as a strike, and a prior serious felony enhancement adding a five-year sentence

(nickel prior). The jury acquitted defendant of count 1, making a criminal threat. The

court sentenced defendant to a determinate prison term of 26 years, eight months. This

court affirmed the judgment of conviction but reversed the sentence. On remand,

defendant was sentenced to 20 years, four months.

In this second appeal, defendant contends the trial court erred in denying his 1 request under Penal Code section 1385,…