In re McKinney CA4/3

Filed 8/30/22 In re McKinney CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re JOHN MCKINNEY, G061440

on Habeas Corpus. (Super. Ct. No. 9CF1955)

OPI NION

Original proceedings; petition for a writ of habeas corpus to file a late notice of appeal. Petition granted. Appellate Defenders, Inc., and Jill Kent for Petitioner. Rob Bonta, Attorney General and Charles C. Ragland Senior Assistant Attorney General for Respondent.

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THE COURT:* Petitioner John McKinney seeks relief from the failure to file a timely notice of appeal. The petition is granted. In March 2010, petitioner and a co-defendant were charged by information with first-degree murder along with an allegation the murder was committed during the commission of a robbery. In May 2012, a jury found him not guilty of first-degree murder but guilty of the lesser included offense of second-degree murder. In May 2012, the court sentenced petitioner to 15 years-to-life in state prison. Petitioner’s conviction was affirmed by this court in November 2013. In January 2019, petitioner filed a petition pursuant to former Penal Code section 1170.95, to vacate his murder conviction. Section 1170.95 has been amended and renumbered as section 1172.6. (Stats 2022, ch. 58, § 10, eff. June 30, 2022). The court appointed the Associate Defender to represent him. Attorney Denise Gragg, the director of the Associate Defender represented him regarding his petition. On July 16, 2019, the trial court denied petitioner’s request for relief under former Penal Code section 1170.95, ruling that it was unconstitutional, and that petitioner had not established a prima facie case because the evidence determined he was the actual killer and that he was a major participant acting with reckless indifference to human life. Petitioner was not present during any of the proceedings connected with his petition or its denial. A copy of the denial was sent to Ms. Gragg on July 16, 2019. The last day for timely filing a notice of appeal would have been September 14, 2019. Ms. Gragg did not file a notice of appeal on petitioner’s behalf.