People v. McShane CA4/2

California Court of Appeal Sep 27, 2023 No. E081318Unpublished

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Holding. The court affirmed the denial of the defendant's petition to vacate his murder conviction under Penal Code section 1172.6, finding the defendant ineligible for relief because he was convicted as the actual killer acting with malice.

Issues

Whether the trial court erred in denying a petition for resentencing under Penal Code section 1172.6 where the defendant was convicted as the actual shooter.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“If the record shows that the jury was not instructed on any of these theories, the petitioner is ineligible for relief as a matter of law.”

“Once defense counsel conceded that the jury was instructed exclusively on an actual malice theory of murder, the trial court was required to deny the petition.”

Filed 9/27/23 P. v. McShane CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, E081318

v. (Super.Ct.No. FRE05916)

DOUGLAS BRIAN McSHANE, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino. Ronald M. Christianson, Judge.

Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

Douglas Brian McShane appeals from the denial of his motion to vacate his

murder conviction pursuant to Penal Code section 1172.6.1

1 All further statutory citations are to the Penal Code.

In 2017, in a jury trial, McShane was found guilty of second degree murder

(§ 187, subd. (a)), with an enhancement for personally and intentionally discharging a

firearm causing death (§ 12022.53, subd. (d)) and lesser included firearm enhancements.

He is serving a sentence totaling 35 years to life in prison.

In 2023, he filed a petition to vacate the murder conviction pursuant to section

People v. McShane CA4/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

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DISPOSITION

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

FIELDS J.

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