People v. Mackey CA1/5

Opinion

Filed 8/17/26 P. v. Mackey CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A172750

v. (San Francisco City & County ANDREW MACKEY, Super. Ct. Nos.

CRI-2133840, SCN-190819)

Defendant and Appellant.

Defendant and appellant Andrew Mackey (appellant) contends that, under Senate Bill No. 81 (2021–2022 Reg. Sess.) (Senate Bill 81) (Stats. 2021, ch. 721, § 1), the trial court abused its discretion during resentencing in failing to strike all but one of the enhancements included in his sentence. We reject the claim.

BACKGROUND

The San Francisco County District Attorney filed an information charging appellant with crimes committed in April 2002, including two counts of attempted murder (Pen. Code,1 §§ 187, 664; counts one & three); two counts of assault with a deadly weapon (§ 245, subd. (b); counts two & four); and being a felon in possession of a firearm (former § 12021, subd.

1 All undesignated statutory references are to the Penal Code unless

otherwise indicated.

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(a)(1); count five).2 The information alleged the attempted murders were premeditated. As to count one, the information alleged appellant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). As to counts one through four, the information alleged appellant personally used a firearm (former § 12022.5, subd. (a)(1)). As to count two, the information alleged appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to count three, the information alleged appellant personally discharged a firearm (§ 12022.53, subd. (c)). Finally, the information alleged appellant had two prior prison terms (§ 667.5, subd. (b)).

In July 2004, a jury found appellant guilty as charged and found all the enhancement allegations true. In November, the trial court sentenced appellant to life with the possibility of parole, plus 25 years to life in state prison. The sentence consisted of life with the possibility of parole on count one, plus 25 years to life for the section 12022.53, subdivision (d) enhancement; a concurrent term of life with the possibility of parole for count three, plus 20 years for the section 12022.53, subdivision (c) enhancement; and a concurrent term of two years on count five. The sentences on counts two and four were stayed under section 654.

In June 2024, appellant filed a Request for Recall of Sentence and Resentencing pursuant to section 1172.1. In February 2025, the trial court resentenced appellant to a total term of life with the possibility of parole, plus 10 years in state prison. The sentence consisted of life with the possibility of parole for count one, plus 10 years for a section 12022.53, subdivision (b) enhancement; a concurrent term of life with the possibility of parole for count

2 The parties agree it is unnecessary to summarize the facts underlying

the charged offenses to resolve appellant’s claim on appeal.

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three, plus 10 years for a section 12022.53, subdivision (b) enhancement; and a concurrent term of two years on count five.

The present appeal followed.

DISCUSSION

I. Additional Background The trial court held a resentencing hearing pursuant to section 1172.1.

Defense counsel argued that appellant “has now given 21 and a half years of his life for a nonhomicide offense, and I think that that’s excessive.” He also pointed out that appellant “was raised on the streets by an uncle who was a drug dealer,” and that appellant is “cognitively impaired.” Counsel asked the court to release appellant.

The prosecutor argued an indeterminate sentence was appropriate. He asserted the case would have been a homicide had doctors not saved the victim’s life, explaining that the victim “was shot in the leg, fell down a flight of stairs, and was unable to move. The defendant walked over, stood over him, and fired six or seven more shots. . . . He was in the hospital for over two months with these injuries.”

Echoing the prosecutor’s comments, the trial court stated, “there’s multiple shots here including the evidence that the victim was stood over and shot multiple times.” The court observed that appellant had been “doing positive programming and more prosocial work in the last ten years or so” but “continues to be marred with rules violations.” The court acknowledged appellant’s troubled upbringing, commenting, “the Court was impressed, sadly impressed, by his background. And he got very little guidance growing up, and that is certainly a mitigating factor that the Court is considering.”

The court concluded that appellant “should get in front of a parole board sooner than later, if nothing else, so that he can have very clear

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guidance as to what he needs to do to get out of prison.” The court struck the section 12022.53, subdivision (d) enhancements as to counts one and three and imposed the lesser section 12022.53, subdivision (b) enhancements on those counts. The court imposed and stayed punishment on the section 12022.5, subdivision (a) enhancements attached to counts one, two, and four, as well as the great bodily injury enhancement attached to count two.

The court commented, “I should make it clear that I’ve considered the factors under 1172.1. I’ve considered the sentencing factors under 1170. I’ve considered the sentencing factors under 1385 subsection (c) and the Rules of Court [in] regard[ to] aggravated versus mitigated behavior.” The court identified as aggravating factors “the great violence, the threats to the witnesses, his prior prison prior, [and] his poor performance on prior supervision.” The court identified as mitigating factors “the positive programming and his evidence of childhood abuse and neglect although it was not tied directly to his behavior on this occasion. Certainly the poor circumstances of his being raised was considered by the Court.” II. Appellant Has Not Shown Error Effective January 1, 2022, the Legislature enacted Senate Bill 81, which “amended section 1385 to provide guidance regarding the exercise of discretion in dismissing sentencing enhancements.” (People v. Anderson (2023) 88 Cal.App.5th 233, 238; see also People v. Walker (2024) 16 Cal.5th 1024 (Walker).) Senate Bill 81 added subdivision (c), which requires a court to dismiss sentencing enhancements if it is in the furtherance of justice to do so (§ 1385, subd. (c)(1)) and to “consider and afford great weight” to evidence offered by the defense to prove that specified mitigating factors are present (§ 1385, subd. (c)(2)). “[A]bsent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of

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an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.’ ” (Walker, at p. 1036.)

Subparagraphs (A) to (I) of subdivision (c)(2) list nine mitigating circumstances. (§ 1385, subd. (c)(2).) Relevant here, subparagraph (B) states that where “[m]ultiple enhancements are alleged in a single case . . . , all enhancements beyond a single enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B).) In the present case, the trial court imposed a 10-year section 12022.53, subdivision (b) enhancement on count one, and a concurrent enhancement under the same subdivision on count three; also, while the court did not impose punishment on the section 12022.5, subdivision (a) enhancements attached to counts one, two, and four, or the great bodily injury enhancement attached to count two, the court did not strike those enhancements.

Appellant argues the trial court abused its discretion by failing to strike all but one of appellant’s enhancements. In particular, appellant argues the court failed to put “ ‘special emphasis’ ” on the multiple enhancements mitigating circumstance, as required by the Supreme Court in Walker, supra, 16 Cal.5th at page 1036, apparently because the trial court did not specifically mention that mitigating circumstance. However, the trial court expressly stated, “I’ve considered the sentencing factors under [section] 1385[,] subsection (c).” Those sentencing factors are the nine mitigating factors in section 1385, subdivision (c)(2), including the multiple enhancements mitigating circumstance.

Appellant’s argument is effectively that, even where a trial court states that it has considered all of the section 1385, subdivision (c)(2) mitigating

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factors, we are obligated to conclude the court failed to put special emphasis on any particular factor the court did not specifically mention. Appellant provides no argument or authority supporting that proposition. Appellant has not shown the trial court failed to properly weigh the multiple enhancements mitigating circumstance.

Appellant does not attempt to argue the trial court abused its discretion in concluding dismissal of the additional enhancements was not in the furtherance of justice—that is, appellant does not argue the court’s implied finding on that issue was “ ‘ “so irrational or arbitrary that no reasonable person could agree with it.” ’ ” (People v. Flores (2021) 63 Cal.App.5th 368, 376.) Any such contention has been forfeited. Because appellant has not shown the trial court erred in its furtherance of justice determination, we need not address whether the court’s order can be upheld on the separate ground that dismissal of additional enhancements would have posed a danger to public safety. Moreover, because appellant has not shown error, we need not consider whether appellant forfeited his claim by failing to object below or whether defense counsel provided ineffective assistance of counsel by failing to specifically request that all but one of appellant’s enhancements be stricken. III. The Abstract of Judgment Must Be Corrected The parties agree the abstract of judgment should be corrected in two respects.

First, the court awarded appellant 7,398 actual days of credit, but the parties agree he should have been awarded one more day of credit because there are 7,399 days from November 13, 2004 to February 14, 2025. We will direct that the abstract of judgment be corrected to reflect 7,399 days of custody credits. (See People v. Donan (2004) 117 Cal.App.4th 784, 792–793.)

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Second, the parties agree the abstract of judgment should be corrected to reflect that the trial court imposed a section 12022.53, subdivision (b) enhancement, not a section 12022.43, subdivision (b) enhancement, with respect to count three. We will direct that the clerical error be corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

We order that the abstract of judgment be corrected to reflect that appellant is awarded 7,399 actual days of custody credits, and that the enhancement imposed on count three is under section 12022.53, subdivision (b), not section 12022.43, subdivision (b). The clerk of the superior court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

SIMONS, J.

We concur. JACKSON, P. J. CHOU, J.

(A172750)