Filed 12/18/15 P. v. McGaughy CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B263748

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA088805)
         v.

CHARLES MCGAUGHY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Deborah S. Brazil, Judge. Affirmed.


         Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance for Plaintiff and Respondent.


                                ___________________________________
       Pursuant to a negotiated agreement, Charles McGaughy pled no contest to a
charge of assault with a firearm (Pen. Code, § 245, subd. (a)(2))1 and admitted that he
suffered a prior strike conviction (§ 667, subds. (b)-(j)). As agreed, the trial court
sentenced McGaughy to an aggregate term of six years in state prison comprised of a
middle term of three years, doubled pursuant to the Three Strikes law. We affirm the
judgment in accord with the procedures established in People v. Wende (1979) 25 Cal.3d
346.
                                      DISCUSSION2
       On January 3, 2014, McGaughy and his two brothers, Tyrone and Michael, drove
to Memorial Park in Hawthorne where they approached Monte Henderson and Treshawn
Phillips. One of the McGaughy brothers asked, “Where are you from?” and another or
the same brother called out, “Playboy Crips!” Someone tried to punch Henderson, but he
was able to run away. The three McGaughy brothers then began punching Phillips.
       Tayshawn Craig and Victor Boyd were in the park, saw the attack, and ran over to
help Phillips. McGaughy pulled a “small caliber” revolver, “possibly a .22,” from his
waistband and fired it at Craig, but did not hit anything. McGaughy and Craig struggled
over the gun in the midst of a “fight” between everybody at the scene. Eventually, police
arrived and detained almost everyone in the area, save for those who had run away when
the police started arriving. Craig said McGaughy had fired a shot him, and told officers
that McGaughy had given the gun to someone who had run from the scene. Police
apprehended Michael a few minutes later a short distance from the park, after he had
been out of sight for a brief period. No gun was recovered, but six .22 caliber bullets
were found in McGaughy’s SUV which was parked nearby.




1
       All further statutory references are to the Penal Code.
2
       The facts are summarized from the preliminary hearing transcript as McGaughy
entered a plea before trial.

                                              2
       In November 2014, the People filed an information charging McGaughy with
assault with a firearm (count 1; § 245, subd. (a)(2)) and possession of a firearm by a felon
(count 2; § 29800, subd. (a)(1)). The information alleged both offenses were committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)), and that, as to
count 1, McGaughy personally used a firearm (§ 12022.5, subd. (a)). The information
alleged that McGaughy had a prior conviction in 2006 for assault with a firearm which
qualified as a prior serious felony (§ 667, subd. (a)) and a prior strike conviction (§ 667,
subds. (b)-(j)), and that he had a separate prior conviction with a prison term (§ 667.5,
subd. (b)).3
       On January 6, 2015, McGaughy filed a motion to dismiss the alleged prior strike
pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 (Romero). McGaughy’s
motion was supported by exhibits in the form of school records and recommendations of
teachers at Los Angeles Trade Tech College. Those materials showed that McGaughy
had performed well in his automotive repairs classes (mostly As and Bs, and a Dean’s
Honor Award) and that his teachers recognized him as a person of good character.
       On February 17, 2015, McGaughy agreed to plead to count 1 and to admit the
prior strike allegation in accord with a plea agreement. McGaughy signed a standard
form “Felony Advisement of Rights, Waiver, and Plea,” and initiated the form adjacent
to advisements of his constitutional trial rights. The trial court dismissed count 2 and all
of the other allegations, and sentenced McGaughy in accord with his plea agreement to a
three-year middle term, doubled to six years for the strike. McGaughy received 410 days
of actual custody credits, and 410 days of good conduct credits.




3
       Tyrone McGaughy and Michael McGaughy were also charged with charged the
assault with a firearm alleged in count 1, and, as to them more generally, the information
alleged that a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)). They
entered pleas to count 1 pursuant to their own separate plea agreements.


                                              3
       McGaughy filed a timely notice of appeal based on the sentence or other matters
occurring after the plea.4 We appointed counsel to represent McGaughy on appeal.
On September 14, 2015, appointed counsel filed a brief pursuant to Wende, supra, 25
Cal.3d 436, requesting we independently review the record on appeal for any arguable
issues. We notified McGaughy by letter that he could submit any claim, argument or
issues that he wished our court to review. On November 5, 2015, McGaughy filed a
letter brief. We understand McGaughy’s letter brief to raise four claims of error which
we address here.
       McGaughy contends he “was not advised of his constitutional rights or of the
consequences of [his] guilty plea.” This claim of error is not supported by the record.
The record shows that McGaughy signed a standard form “Felony Advisement of Rights,
Waiver, and Plea,” and initialed the form next to advisements of his constitutional trial
rights.5 Further, the record shows that the trial court carefully reviewed the plea form
with McGaughy, questioning whether he understood the form and whether he had affixed
his initials “in the boxes” adjacent to the advisement of his constitutional rights. We are
satisfied that McGaughy knowingly and willingly waived his constitutional rights.
The plea form also included an explanation of the consequences of his plea. We thus
reject any error in this regard.
       McGaughy “respectfully asks [our] court . . . to dismiss [his] prior strike.” Here,
we construe McGaughy’s letter brief to raise an argument that the trial court erred in not
granting his Romero motion. We disagree. McGaughy entered into a negotiated plea
agreement under which he accepted a six-year sentence which included a three-year mid-
term, doubled for his prior strike. By accepting such a plea agreement, he effectively


4
       McGaughy’s notice of appeal also indicated that he desired to challenge the
validity of his plea. Any such claim is not reviewable on appeal because the trial court
denied his request for a certificate of probable cause. (§ 1237.5.)
5
        We ordered the superior court to transmit McGaughy’s felony advisement of
rights, waiver, and plea form to our court. On our own motion, we augment the record to
include a copy of the form.

                                             4
ceded his Romero motion, which had not been ruled upon before he agreed to the plea.
Had the trial court denied the Romero motion before the plea hearing, and had
McGaughy’s plea agreement preserved the issue of Romero error, we might view the
present issue differently. However, having accepted the plea and sentence based on use
of his prior strike, we find no Romero error.
       McGaughy next contends that the trial court erred in “rely[ing]” on his prior strike
to double his sentence. Here, McGaughy seems to assert that his underlying prior strike
conviction was obtained by plea, and that the plea was obtained in violation of his
constitutional rights. He cites Burgett v. Texas (1967) 389 U.S. 109 (Burgett) and states:
“If the defendant could establish the prior convictions were invalid, he was entitled to be
resentenced.” We see no error.
       Burgett was decided four years after Gideon v. Wainwright (1963) 372 U.S. 335,
and established the constitutionally-founded rule that states are required to provide a
lawyer to an indigent defendant in a criminal case. In Burgett, the United States Supreme
Court ruled that a Texas state court unconstitutionally relied on a prior felony conviction
to invoke the state’s recidivist offender law, where “the certified records of the conviction
on their face raise[d] a presumption that [the defendant] was denied his right to counsel in
the [prior] proceeding, and therefore that his conviction was void.” (Burgett, supra, 389
U.S. at pp. 114-115.) We see nothing in McGaughy’s current case tending to support his
implicit assertion that he did not have a lawyer when he was convicted in his prior case.
       McGaughy’s final contention is that “[n]o evidence . . . that a firearm was used”
was presented in his case “by any witness under penalty of perjury.” We find no error.
McGaughy’s claim appears to attack the sufficiency or competency of the evidence in his
case. Any such claim was foregone when McGaughy agreed to plead guilty before trial,
admitting a factual basis for the charged offense. Nevertheless, there is sufficient
evidence that a firearm was used. City of Hawthorne Police Department Detective Keith
Chaffin testified under oath at the preliminary hearing. He testified that he responded to
the events in Memorial Park and that he spoke to two witnesses, Treshawn Phillips and
Tayshawn Craig. Both say that they saw McGaughy pull out a handgun and fire it.

                                                5
The use of such testimony by a police officer, given under oath, has been permitted in
this state since the voters approved Proposition 115 in 1990. (See Cal. Const., art. 1,
§ 30, subd. (b); and see also § 872, subd. (b); and see generally People v. Miranda (2000)
23 Cal.4th 340, 347-354.)
       We have reviewed the record on appeal, and find that McGaughy’s appointed
counsel has fulfilled her duty, and that no arguable issue exists. (Wende, supra, 25
Cal.3d 436, People v. Kelly (2006) 40 Cal.4th 106.)
                                     DISPOSITION
       The judgment is affirmed.


                                                        BIGELOW, P. J.
We concur:




              RUBIN, J.




              FLIER, J.




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