People v. McGlory CA4/2
E073632
| Cal. Ct. App. | Jul 6, 2021Background
- At Albertaco’s restaurant, David Rodriguez and defendant Ladedrick McGlory argued; Rodriguez punched McGlory, then appeared to reach for his waistband. McGlory pulled a gun and shot Rodriguez in the upper torso, causing serious injury.
- Surveillance video captured the incident; investigators identified McGlory from the footage, a witness made a photo identification, and police later recovered a loaded .25 caliber semiautomatic under a car seat after stopping McGlory.
- McGlory was charged with attempted premeditated murder, assault with a semiautomatic firearm, two counts of being a felon in possession of a firearm, and possession of ammunition, with firearm and great-bodily-injury enhancements alleged.
- First trial ended in mistrial on counts 1–2; retrial resulted in convictions on all counts and true findings on enhancements; total aggregate sentence included life with a 7-year minimum and a consecutive 25-to-life enhancement term; concurrent 2-year terms were imposed on possession counts.
- Before retrial, the victim (Rodriguez) initially agreed to testify but later invoked the Fifth Amendment after being advised; defense argued he would have testified he was armed and that the prosecutor improperly declined immunity and solicited counsel for Rodriguez.
- On appeal the court affirmed convictions but vacated a $1,500 presentence incarceration fee and ordered the possession-of-ammunition term stayed under Penal Code § 654.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (McGlory) | Held |
|---|---|---|---|
| 1. Court’s allowance of victim invoking Fifth Amendment | Court acted within discretion; witness may claim privilege | Court should have inquired into basis; statute of limitations barred related charges so invocation was improper and prejudicial | Forfeited by failure to object; on merits no reversible error—invocation could have multiple bases and any error harmless beyond reasonable doubt |
| 2. Prosecutorial misconduct for not offering immunity / soliciting counsel | No misconduct; People appropriately declined to grant immunity and sought advisory counsel to avoid eliciting incriminating facts | Prosecutor transformed a willing witness into an unwilling one, violating compulsory process | Forfeited for failure to object; record fails to show misconduct or prejudice; claim rejected |
| 3. Ineffective assistance for failing to object when witness asserted Fifth | Counsel had tactical leeway; no showing performance was unreasonable | Counsel’s failure to object deprived McGlory of compulsory process and prejudiced defense | Record does not show counsel lacked rational tactical purpose; claim not resolved on direct appeal (denied) |
| 4. Sentencing errors: presentence incarceration fee and punishment for ammunition | Fee is authorized only for local confinement; multiple punishment barred under § 654 | Fee improper because defendant received state prison; ammunition sentence should be stayed under § 654 | Agreed with defendant: vacated $1,500 fee; possession-of-ammunition term stayed under § 654; convictions otherwise affirmed |
Key Cases Cited
- Washington v. Texas, 388 U.S. 14 (compulsory-process is a fundamental right)
- Hoffman v. United States, 341 U.S. 479 (witness may invoke Fifth where answers may incriminate)
- People v. Seijas, 36 Cal.4th 291 (review of witness Fifth-invocation; witness’s say-so insufficient)
- People v. Mincey, 2 Cal.4th 408 (recommendation for pretestimony hearing on privilege assertions)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard)
- People v. Jones, 54 Cal.4th 350 (concurrent sentences constitute multiple punishment under § 654)
- Neal v. State of California, 55 Cal.2d 11 (§ 654 bars multiple punishment for same objective)
- People v. Scott, 9 Cal.4th 331 (unauthorized sentences may be corrected on appeal)