People v. McDonough CA3

Filed 6/23/23 P. v. McDonough CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Nevada) ----

THE PEOPLE, C092461

Plaintiff and Respondent, (Super. Ct. No. SF07431)

v. OPINION ON TRANSFER

CLIFFORD KEITH MCDONOUGH,

Defendant and Appellant.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), after the denial of defendant Clifford Keith McDonough’s petition for resentencing pursuant to Penal Code section 1172.6.1 After defendant filed a supplemental brief

1 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Defendant filed his petition under former section 1170.95, but we will cite to the current section 1172.6 throughout this opinion. Undesignated statutory references are to the Penal Code.

1

raising issues relating to the trial court’s denial of his petition, we affirmed the judgment in our original opinion filed August 11, 2021. Defendant petitioned our Supreme Court for review; the Supreme Court has now directed us to reconsider the matter in light of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). We shall again affirm. I. BACKGROUND On September 30, 2008, a jury found defendant guilty of second degree murder (§ 187), inflicting corporal injury resulting in a traumatic condition on his spouse (§ 273.5, subd. (a)), with the enhancement he personally inflicted great bodily injury under circumstances of domestic violence (§ 12202.7, subd. (e)), and of misdemeanor battery (§ 242). For second degree murder, defendant’s jury was instructed with CALCRIM No. 520 and exclusively on an implied malice theory. On December 5, 2008, defendant was sentenced to 15 years to life plus six years in prison. Defendant appealed his convictions, which we affirmed. (People v. McDonough (June 1, 2010, C060726) [nonpub. opn.].) On April 6, 2020, defendant filed a petition for resentencing under section 1172.6. On June 9, 2020, after appointing defendant counsel and briefing by the parties, the trial court denied defendant’s petition, finding him ineligible for relief because he was the actual killer. Defendant filed a timely notice of appeal from this order. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. As we reference herein, defendant exercised his right to file a supplemental brief. On April 7, 2023, after defendant’s case was transferred back to us, we notified defendant: (1) counsel had filed a brief indicating no arguable issues had been identified