People v. McClain CA2/3

Filed 3/23/22 P. v. McClain CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B312855

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA079934) v.

TONY RENAL MCCLAIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Chung, Judge. Reversed with direction. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

Tony McClain entered into a negotiated plea that provided for probation. When McClain was late to his subsequent sentencing hearing, the trial court found that he had violated the plea agreement and sentenced him to prison. McClain appeals, contending that the trial court violated his plea agreement. We agree and reverse the judgment. BACKGROUND McClain was charged with various offenses after he broke into his ex-girlfriend’s apartment while she was present. Pursuant to a negotiated plea, McClain agreed to plead no contest to first degree residential burglary with a person present (Pen. Code,1 §§ 459, 667.5, subd. (c)(21)), for which he would be sentenced to three months’ probation and to a four-year term, execution suspended. Accordingly, on April 27, 2021, McClain pled no contest to that offense and admitted that another person was present in the residence during the burglary. McClain also signed a plea form in which he agreed that if he failed to appear for sentencing “without a legal excuse” his plea would become an open plea, he would not be allowed to withdraw his plea, and he could be sentenced to the maximum allowed by law. He further agreed that a judge other than the one who had taken his plea would sentence him.2 McClain was released on his own recognizance and ordered to appear on May 20, 2021, at 8:30 a.m., for sentencing.