People v. McClish CA3

Filed 3/8/22 P. v. McClish CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C093042

Plaintiff and Respondent, (Super. Ct. No. 03F07198)

v.

KENNETH M CCLISH,

Defendant and Appellant.

Defendant Kenneth McClish appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95 1 as to his convictions for second degree murder and attempted murder. Defendant contends the trial court erred in finding him ineligible for relief as a matter of law. Based, in part, on new legislation that applies retroactively to defendant’s case, the People concur that defendant is entitled to

1 Undesignated statutory references are to the Penal Code.

1

reversal and remand for further proceedings on both convictions. As we shall explain, we agree with the parties. BACKGROUND Given the nature of this appeal, it is not necessary to recount at length the events leading up to the shooting death of Allen Qualls and the shooting of M.W., resulting in defendant’s convictions for second degree murder (§ 187) and attempted murder (§§ 664/187).2 (King, supra, C050300.)3 It is enough to state that codefendant Demarkas King approached Qualls and M.W. while they were seated in a car and fired a gun multiple times, striking both men. Although King tried to prove at trial that he acted alone, the evidence established defendant was involved in the commission of the offenses. (King, supra, C050300.) The jury was instructed on several degrees and theories of homicide including second degree felony murder (CALJIC Nos. 8.32, 8.33, 8.34, & 9.03) and was also instructed on coconspirator joint responsibility where liability attaches for a murder or attempted murder when that was a natural and probable consequence of the agreed-upon crime(s) (CALJIC No. 6.11). The jury, however, made no findings to indicate the theory (or theories) of murder on which it rested its verdicts.