Filed 8/17/26 P. v. Mackey CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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)
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