P. v. McGilberry CA1/2
Defendant Donnell McGilberry was convicted by a jury and sentenced to a lengthy prison term on charges of second-degree murder, attempted robbery, and carrying a loaded firearm on the person in an incorporated city, which prison term included the upper term of three years for the attempted robbery. McGilberry argues—and the Attorney General concedes—that he is entitled to resentencing on the attempted robbery count under two pieces of legislation that became effective while this appeal was pending, the first of which created a presumption that the trial court will impose the middle term unless aggravating factors are found true by the jury, and the second of which created a presumption that the lower term will be imposed where the defendant is a youth or has suffered certain types of trauma. Accordingly, we will vacate the sentence on the attempted robbery count and remand for resentencing.
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