Filed 7/16/26 P. v. McCaw CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B341613
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA501083)
v.
MICHAEL GARRETT MCCAW,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Drew E. Edwards, Judge. Affirmed and
modified with directions.
John Lanahan, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Michael Garrett McCaw appeals the judgment
arising from his no contest plea to assault with a semiautomatic
firearm and possession of a firearm by a felon, and his admission
to an enhancement for personally using a firearm.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende),
McCaw’s appellate counsel requested that we review the record
and determine whether any arguable issues exist. We have
reviewed the entire record and find no arguable issues, other
than sentencing errors. We modify the sentence by vacating the
trial court’s stay of punishment for the firearm enhancement and
instead strike the punishment, and we apply the limitation of
presentence conduct credit pursuant to Penal Code section
2933.1.1 We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts2
On May 8, 2021, a woman named Sella Parisian told Los
Angeles Police Department (LAPD) Officer Eduardo Alvarez that
10 days ago, she saw McCaw in a parking lot on Hill Street in Los
Angeles. On a previous occasion, McCaw asked Parisian to bring
prostitutes to him and demanded that she have sex with him.
When Parisian refused, McCaw punched her in the mouth and
1 All further undesignated statutory references are to the
Penal Code.
2 The parties agreed that the police reports and the evidence
from the preliminary hearing would provide the factual basis for
McCaw’s no contest plea. We refer to the facts from the
preliminary hearing to provide background.
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shot her in the leg. Parisian fled and McCaw drove away in a
blue Dodge Dart.
On May 12, 2021, LAPD officers were investigating the
shooting of Parisian. Specifically, they were looking for a Dodge
Dart with a license plate number registered to McCaw. Officer
Michael Lopez found the car in a hotel parking lot and saw
McCaw leaving in a black Dodge Dart, driving 45 miles per hour
in a 35 mile per hour zone. The officers pursued McCaw, who
failed to stop at two stop signs during a forty-second chase. The
officers stopped McCaw in a parking lot after he threw a bag out
of his car. Officer Cuba found two firearms in the bag.
II. Procedure
On December 16, 2021, the District Attorney filed an
information charging McCaw with assault with a semiautomatic
firearm (§ 245, subd. (b); count 1), fleeing a pursuing peace
officer’s motor vehicle while driving recklessly (Veh. Code, §
2800.2; count 2), possession of a firearm by a felon (§ 29800, subd.
(a)(1); count 3), and unlawful possession of ammunition (§ 30305,
subd. (a)(1); count 4). As to count 1, the information alleged
enhancements for personally using a firearm (§ 12022.5, subd.
(a)) and personally inflicting great bodily injury (§ 12022.7, subd.
(a)). The information also alleged that McCaw had a prior felony
conviction under the Three Strikes law (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)).
On August 17, 2022, after conducting an evidentiary
hearing, the trial court denied McCaw’s motion to suppress.
On August 22, 2024, McCaw waived his right to a trial and
other constitutional rights and pleaded no contest to assault with
a semiautomatic firearm (§ 245, subd. (b); count 1) and possession
of a firearm by a felon (§ 29800, subd. (a)(1); count 3). He
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admitted to allegations for personal use of a firearm (§ 12022.5,
subd. (a)) and having a prior felony conviction under the Three
Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
The trial court imposed a total aggregate term of seven
years four months in state prison. On count 1, the court imposed
six years, calculated as the low term of three years, doubled
pursuant to the Three Strikes law. On count 3, the court imposed
a consecutive term of one year four months, calculated as one-
third of the mid-term of eight months, doubled pursuant to the
Three Strikes Law. The court “impose[d] and stay[ed]” three
years for the firearm enhancement. McCaw received custody
credit of 2,352 days, consisting of 1,176 actual days and 1,176
days of local presentence conduct credit.
On August 29, 2024, the trial court denied a motion for
reconsideration of sentencing filed by McCaw to correct the
calculation of credit. On September 10, 2024, the trial court
amended its award of credit to 2,396 days, consisting of 1,198
actual days and 1,198 days of good time/work time credit.
On October 15, 2024, McCaw filed a timely notice of appeal.
The trial court denied McCaw’s request for a certificate of
probable cause.
DISCUSSION
I. Independent Review Pursuant to People v. Wende
We appointed counsel to represent McCaw on appeal.
Counsel filed an opening brief that includes the facts and
procedural history of the case and requests that we review the
record and determine whether there are any arguable issues on
appeal. (Wende, supra, 25 Cal.3d at p. 441.) Counsel advised
McCaw of the right to file a supplemental brief within 30 days
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from the date that he filed the opening brief. McCaw did not file
a supplemental brief.
We have examined the entire record. The trial court made
two sentencing errors, including the miscalculation of
presentence conduct credit. We provided McCaw and the
Attorney General with an opportunity to address in letter briefs
the applicability of section 2933.1 to the calculation of
presentence conduct credit. In their respective letter briefs,
McCaw and the Attorney General agree that section 2933.1
applies. 3 We conclude that the limitation on presentence conduct
credit applies, as we discuss below.
We are satisfied that no other arguable issues exist. We
are further satisfied that McCaw’s appellate counsel has fully
satisfied his responsibilities under Wende. (Smith v. Robbins
(2000) 528 U.S. 259, 279–284; Wende, supra, 25 Cal.3d at p. 441;
People v. Kelly (2006) 40 Cal.4th 106, 123–124.)
3 In his letter brief, McCaw’s appellate counsel asserts, “The
validity of a sentence imposed after a guilty plea may be appealed
by a defendant only after the issuance of a [certificate of probable
cause].” He argues that he cannot appeal the sentence because
the trial court denied his request for a certificate of probable
cause. He recommends that we dismiss the appeal. We disagree.
A certificate of probable cause is not required for an appeal
based on “[t]he sentence or other matters occurring after the plea
or admission that do not affect the validity of the plea or
admission.” (Cal. Rules of Court, rule 8.304(b)(2)(B).) The award
of credit is a part of the sentence. A certificate of probable cause
is not necessary, and we need not dismiss his appeal.
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II. Correction of sentence
A. Staying versus striking the punishment for the
firearm enhancement
When the prosecutor announced the terms of the plea
agreement, she stated that McCaw must admit to the firearm
enhancement as to count 1 and did not state any additional
punishment for it. After taking McCaw’s admission to the
firearm enhancement, the trial court did not impose additional
punishment for it. Instead, the trial court incorrectly imposed
and stayed the low term of three years for the firearm
enhancement. Generally, a court has no discretion to stay an
enhancement. (People v. Haykel (2002) 96 Cal.App.4th 146, 151;
People v. Lopez (2004) 119 Cal.App.4th 355, 365; People v.
Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123.) The court
must either impose or strike the enhancement. (Lopez, at p. 364.)
Under section 1385, subdivision (b)(1), the court may also strike
the punishment, instead of the enhancement itself.
The trial court’s stay of the enhancement resulted in an
unauthorized sentence. (People v. Bradley (1998) 64 Cal.App.4th
386, 391.) A resentencing hearing is unnecessary because the
correction does not require resolving a factual dispute or
exercising discretion. The trial court did not intend to dismiss
the firearm enhancement because an admission to it was
required by the plea agreement. Nor did the trial court intend to
impose additional punishment for the firearm enhancement. The
record clearly supports the court’s intention to strike the
punishment for the enhancement had it known a stay was not
possible.
We accordingly modify the sentence by vacating the trial
court’s order that imposed and stayed the three-year term for the
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firearm enhancement as to count 1. (§ 1260; People v. Vieira
(2005) 35 Cal.4th 264, 294; People v. Alford (2010) 180
Cal.App.4th 1463, 1473.) We further modify the sentence to
comply with the terms of the plea agreement by striking the
punishment for the firearm enhancement pursuant to section
1385, subdivision (b)(1).
B. Presentence conduct credit
The trial court also incorrectly calculated presentence
conduct credit. Generally, section 4019 permits awarding an
additional day of conduct credit for work performed and an
additional day for good behavior for every two days of actual
custody. (§ 4019, subd. (f); People v. Whitaker (2015) 238
Cal.App.4th 1354, 1358.) But when a defendant is convicted a
violent felony offense within the meaning of section 667.5,
subdivision (c), section 2933.1, subdivision (c) limits presentence
conduct credit to a maximum of 15 percent of the actual custody
credits. Any felony in which the defendant uses a firearm
qualifies for this limitation. (§ 667.5, subd. (c)(8).)
McCaw’s admission to the firearm enhancement elevated
his assault conviction to a violent felony. By striking the
punishment for the firearm enhancement, “[t]he fact of the
enhancement . . . remain[s]” and the presentence conduct credit
restriction under section 2933.1 applies. (In re Pacheco (2007)
155 Cal.App.4th 1439, 1444; see People v. Fuentes (2016) 1
Cal.5th 218, 225–226.) But the trial court neglected to apply the
limitation under section 2933.1, subdivision (c).4
4 In his letter brief, McCaw appears to claim that trial
counsel misadvised him about his presentence conduct credit and
told him that “he would be released within a matter of months.”
McCaw asserts that he was denied effective assistance of counsel
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In modifying the judgment, we also correct the award of
presentence conduct credit. (People v. Duran (1998) 67
Cal.App.4th 267, 270.) Because of the application of this
limitation, McCaw’s presentence conduct credit is modified from
1,198 days to 179 days. “The correction should be made even if it
results in less credit . . . for the defendant.” (People v. Guillen
(1994) 25 Cal.App.4th 756, 764.)
because “[t]he affirmative misadvice [sic] on good time credits as
set forth by [section 2933.1] would fall below the minimal
standard of professional conduct in any jurisdiction.”
McCaw is incorrect. The transcript does not contain any
comment by trial counsel that McCaw would be released within a
matter of months. Trial counsel informed the trial court that
McCaw had 1,176 actual days of credit. With that figure, the
trial court calculated presentence conduct credit as 1,176 days.
But trial counsel did not state any number of days for
presentence conduct credit.
The record also does not support any argument by McCaw
that his no contest plea was induced by his trial counsel
affirmatively misrepresenting his presentence conduct credit.
Nor does the record indicate that custody credit was material to
McCaw’s acceptance of the plea agreement. Under these
circumstances, any failure by defense counsel to inform McCaw
about the limitation by section 2933.1 did not render his
representation ineffective. (People v. Reed (1998) 62 Cal.App.4th
593, 601.)
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DISPOSITION
We modify the judgment to vacate the imposition and stay
of the three-year term for the firearm enhancement under section
12022.5, subdivision (a) as to count 1. We further strike the
punishment for the firearm enhancement, in accordance with the
plea agreement between McCaw and the District Attorney. We
also modify the presentence conduct credit to 179 days by
applying the 15 percent limitation under section 2933.1.
The clerk of the superior court is ordered to forward a
certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation. The amended
abstract of judgment is to reflect for Item No. 2, “Punishment
struck” under “Time imposed” for the firearm enhancement
under section 12022.5, subdivision (a), and for Item No. 16, “179”
for “Local conduct” credit with the box checked for “2933.1.”
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HANASONO, J.
We concur:
EGERTON, Acting P. J. ADAMS, J.
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