P. v. Smith CA2/8
Defendant Marcus Kenneth Smith appeals following his jury conviction of the first degree murder of Donald Chapman, with a true finding on the allegation he personally and intentionally discharged a firearm causing Mr. Chapman’s death. The court found true a prior robbery conviction, and sentenced defendant to 80 years to life, denying defendant’s Romero motion to strike the prior conviction.
On appeal, defendant argues that prosecutorial misconduct during closing argument – based on the comment that “[y]ou can’t lawyer yourself out of facts” – requires reversal. Defendant also contends the trial court did not exercise informed discretion when it denied defendant’s Romero motion. And, in supplemental briefing, defendant contends that legislation effective January 1, 2018, ending the statutory prohibition on a trial court’s ability to strike a firearm enhancement (see Pen. Code, §§ 12022.5 & 12022.53), applies and requires a remand for a new sentencing hearing.
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