People v. McClary CA1/2

Filed 1/28/21 P. v. McClary CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A158242 v. ROBERT ANTHONY MCCLARY, (Contra Costa County Super. Ct. No. 5-170844-5) Defendant and Appellant.

Defendant Robert McClary was charged with murder and pleaded no contest to voluntary manslaughter as part of a plea agreement. He later petitioned for resentencing under Senate Bill No. 1437, which made certain changes to the felony murder rule and the natural and probable consequences doctrine. The trial court denied McClary’s petition, concluding that he is not eligible for relief under Senate Bill No. 1437 because he was not convicted of murder. We affirm. BACKGROUND On May 22, 2017, the Contra Costa District Attorney filed an information alleging that on August 18, 2015, McClary and Montino Keith Lewis committed felony murder in the course of a burglary and an attempted robbery (Pen. Code, § 187, subd. (a))1 (count 1), attempted first degree

1 Further undesignated statutory references are to the Penal Code.

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residential robbery (§§ 211, 664) (count 2), and first degree burglary (§ 459) (count 3), along with various firearm enhancements. On April 10, 2018, McClary entered into a plea agreement whereby he pleaded no contest to count 3 and a new count 4—voluntary manslaughter (§ 192, subd. (a))—and admitted two prior conviction enhancements (§ 667, subd. (a)(1)), in exchange for a sentence of 14 years 4 months. That same day, the trial court sentenced McClary to 14 years 4 months in prison—1 year 4 months on count 3, 3 years on count 4, plus 5 years each for the two prior conviction enhancements. The remaining charges were dismissed. On September 30, 2018, Senate Bill No. 1437 was signed into law. “ ‘Senate Bill [No.] 1437 was enacted to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Substantively, Senate Bill [No.] 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill [No.] 1437 also adds . . . section 1170.95, which allows those “convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).)’ ” (People v. Anthony (2019) 32 Cal.App.5th 1102, 1148, quoting People v. Martinez (2019) 31 Cal.App.5th 719, 723–724.) On January 17, 2019, McClary filed a petition for resentencing under section 1170.95, using a standard form and checking a box to request that