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The People v. Bradley James Mcclung

March 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRADLEY JAMES MCCLUNG, DEFENDANT AND APPELLANT.



(Super. Ct. No. 62090395)

The opinion of the court was delivered by: Robie, J.

P. v. McClung

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Bradley James McClung pled guilty to battery with serious bodily injury and admitted a prior serious felony conviction in exchange for a sentencing lid of four years. The court declined defendant's request pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his prior strike conviction and sentenced him to four years in state prison.

Defendant appeals the court's denial of his Romero motion as an abuse of discretion. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

G. J., an employee of Wal-Mart, was in one of the stalls in the men's restroom when he heard defendant enter the restroom. Assuming defendant was another employee, G. J. hit the wall of the stall and said, "teamwork." Defendant, who by then was standing outside of G. J.'s stall, asked if G. J. wanted some toilet paper. G. J. again said, "teamwork." Defendant kicked the wall of the stall several times and yelled, "'You want toilet paper, asshole?'" He then kicked in the stall door, slamming it into G. J.'s head and knees. Defendant stood over G. J. and twice said, "'Get up, asshole. I'm gonna kick your motherfucking ass.'" When an employee exited another stall, defendant left the restroom and was apprehended shortly thereafter in the parking lot outside the store. G. J. suffered head, neck and knee pain, and sustained a laceration to the top of his head which required six staples.

Defendant was charged in case No. 6290395 (the Wal-Mart case) with battery resulting in serious bodily injury. The complaint alleged the offense was a serious felony and that defendant had a prior serious felony conviction arising out of two burglaries committed in 2003.

Approximately four months later, while the Wal-Mart case was pending, defendant got into an argument with his girlfriend, J. H., who was then eight and one-half months pregnant. Defendant pushed J. H. onto a couch and used his weight*fn1 to hold her down while he yelled and screamed at her. A roommate tried without success to pull defendant off J. H. Defendant finally got up and walked outside, only to return and kick the door open, breaking it off its hinges. Defendant was arrested and charged in case No. 6294202 (the domestic case) with misdemeanor domestic battery. (§ 243, subd. (e)(1).)

Defendant pled guilty to the charges in both cases and admitted a prior strike in exchange for a four-year sentencing lid. He filed a Romero motion requesting that the court strike the prior strike conviction. The People filed a statement in aggravation and opposition. Defendant was 18, homeless, and addicted to drugs at the time of the prior offense. He attempted to gain access to a residence, knowing the owner was not home, but was unsuccessful. He found a nearby home that he knew to be unoccupied, entered through an open side door, and stole "a bottle of alcohol, a bottle of [V]icodin, and some loose change." He was arrested shortly thereafter and charged with two counts of felony burglary. Defendant pled guilty to one of the felonies as a strike, but "was permitted to plead to one of his felonies as a non-strike." He was also "given the opportunity through probation to address his substance abuse issues[] and . . . had a chance to withdraw his plea to the first degree burglary charge if he successfully completed probation. He was unable to do so as he was arrested on a violation of probation in 2005."

The court denied defendant's Romero motion and sentenced him to the low term of two years, doubled ...


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