People v. McClay CA4/1

California Court of Appeal Feb 22, 2023 No. D079688Unpublished

AI Brief

AI-generated · verify before citing

Holding. The court held that while the trial court erred under Senate Bill 567 by relying on unproven prior convictions to impose an upper-term sentence, the error was harmless because a jury would have found the existence of those prior convictions true beyond a reasonable doubt based on the record.

Issues

Whether the trial court's reliance on prior convictions not admitted by the defendant or proven to a jury violated Senate Bill 567.
Whether the sentencing error under Senate Bill 567 was harmless beyond a reasonable doubt.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Because we conclude any sentencing error was harmless, we affirm the judgment.”

“We are thus satisfied a jury presented with such records would have found those aggravating circumstances true beyond a reasonable doubt.”

“We therefore conclude the error is harmless and remand is unwarranted.”

Filed 2/22/23 P. v. McClay CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079688

Plaintiff and Respondent,

v. (Super. Ct. No. SCD286314)

KASHUN DANTE MCCLAY,

Defendant and Appellant.

APPEAL from judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Judgment affirmed. Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Warren Williams and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Kashun Dante McClay pled guilty to driving under the influence (DUI) and admitted he suffered two prior felony DUI convictions. He appeals his upper-term sentence of three years under retroactive application of Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567). Because we conclude any sentencing error was harmless, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Around 9:00 a.m. in April 2020, McClay drove onto a naval base after a night of “ ‘partying’ ” because, he explained, it was “ ‘4/20.’ ” A preliminary alcohol screening test revealed his blood alcohol content (BAC) at 11:06 a.m. was 0.246 percent. An Intoxilyzer breath test at 1:22 p.m. had him at 0.240 percent. A bottle of Hennessy was found underneath his driver’s seat. In February 2021, McClay pled guilty to violating Vehicle Code section 23152, subdivisions (a) and (b) (counts 1 and 2, respectively). He admitted to having two prior felony DUI convictions within 10 years (Veh. Code, § 23550.5, subd. (a)) and a BAC of 0.15 percent or more at the time of the charged offenses (Veh. Code, § 23578). He agreed to be sentenced by the trial court and acknowledged he could receive the maximum sentence of three years state prison. At sentencing in October 2021, the trial court sentenced McClay to the upper term of three years state prison on count 1 and stayed an upper term of

People v. McClay CA4/1

AI Brief

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079688

KASHUN DANTE MCCLAY,

More from California Court of Appeal

Related research

IRION, J.

AI Brief