P. v. McClelan







Filed 11/22/10 P. v. McClelan CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. DAWON McCLELAN, Defendant and Appellant.

F059219 (Super. Ct. No. MCR034691B) OPINION

THE COURT^*
APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.
Cannon & Harris and Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
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STATEMENT OF THE CASE
On April 10, 2009, the Madera County District Attorney filed an information in superior court charging appellant Dawon McClelan with two counts of robbery (Pen. Code,^[1] § 211) with use of a deadly weapon (§ 12022, subd. (b)(1)). On April 16, 2009, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations. On September 23, 2009, jury trial commenced. On September 25, 2009, the court declared a mistrial after the jury was unable to reach a verdict after extensive deliberations.
On November 5, 2009, appellant entered into a plea agreement with the prosecution. Appellant pleaded guilty to count 1 and admitted the truth of the related special allegation. On motion of the district attorney, the court dismissed count 2 and the related special allegation. On December 2, 2009, appellant filed a statement in mitigation (§ 1170, subd. (b), Cal. Rules of Court, rule 4.437).
On December 14, 2009, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to the upper term of five years on count 1 with a consecutive one-year term for the related enhancement. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and imposed a variety of fines, fees, and assessments, including a $30 court security fee.^[2]
On December 23, 2009, appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea (Cal. Rules of Court, rule 8.304).
STATEMENT OF FACTS
The following facts underlying count 1are taken from the pre-plea report and recommendation of the probation officer filed June 12, 2009:
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