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Name: People v. McVey
Case #: B280966
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 06/12/2018

Remand for trial court to consider whether to strike gun use enhancement based on Senate Bill No. 620 is unnecessary where the trial court’s comments at sentencing reflect that it would not strike the enhancement. McVey was convicted of voluntary manslaughter and felony vandalism. A gun use enhancement was found true. (Pen. Code, § 12022.5, subd. (a).) On appeal he sought remand for reconsideration of the gun use enhancement pursuant to SB 620, which amended section 12022.5, subdivision (c) to remove the prohibition on striking firearm enhancements. Held: Affirmed. Effective January 1, 2018, courts have discretion to strike firearm enhancements. The statutory change potentially mitigates punishment and therefore applies to all cases not yet final. (In re Estrada (1965) 63 Cal.2d 740.) However, the trial court here imposed the maximum term for the gun use, citing aggravating factors, including defendant’s propensity for violence, his callous attitude towards the unarmed homeless victim, the lack of significant provocation, and his lack of remorse. In light of the trial court statements regarding the aggravating circumstances and its choice of the upper term for the enhancement, no purpose would be served in remanding the case for reconsideration of this enhancement.

The trial court did not err by excluding evidence of the deceased’s mental illness and criminal history. Prior to trial, the prosecution sought to exclude evidence of police reports and medical records regarding the deceased, and any expert testimony based on this material. The trial court found the police reports inadmissible hearsay (People v. Sanchez (2016) 63 Cal.4th 665) and the medical records inadmissible for lack of certification (Evid. Code, § 1561) that would qualify them as business records. This was not error. Evidence Code section 1271, the business records exception to the hearsay rule, permits admission of hearsay if certain foundational requirements are met. Here, the deceased’s uncertified medical records lacked adequate foundation for admission. Police reports generally do not fall under the business records exception because they are created for trial, not to facilitate business operations. Further, Sanchez prevents an expert from relating as true case-specific facts asserted in hearsay statements about which the expert has no personal knowledge and for which there is no competent evidence. The evidence was properly excluded.

The full opinion is available on the court’s website here: