People v. McClelland

Filed 3/27/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081369

Plaintiff and Respondent,

v. (Super. Ct. No. SCD102568)

DAVID D. MCCLELLAND,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed. Barbara A. Smith and Leslie A. Rose, 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, Arlene A. Sevidal, James M. Toohey, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent. David D. McClelland appeals the denial of his petition for resentencing. He argues the trial court violated his due process rights because he was not present at what he misconstrues as the evidentiary hearing. However, he was present at a hearing, which we conclude—looking to its substance and

effect rather than its label—was the evidentiary hearing. We therefore affirm. I. In 1994, McClelland pled guilty to second degree murder and was sentenced to a state prison term of 15 years to life. In 2019, he filed a Penal

Code section 1170.951 petition. The People conceded McClelland made a prima facie showing of entitlement to relief. The trial court thus issued an order to show cause (OSC) and scheduled an evidentiary hearing, which was continued and reset repeatedly at the parties’ request. In January 2022, the People submitted a return to the OSC, indicating that, at the evidentiary hearing, they intended to rely on (1) the grand jury transcript as the record of conviction, and (2) McClelland’s statements in California Department of Corrections and Rehabilitation (CDCR) records. They argued this evidence established McClelland’s guilt beyond a reasonable doubt of second degree murder as an aider and abettor of an implied malice murder. In June, McClelland submitted his evidentiary hearing brief. He asked the court not to consider certain hearsay testimony in the record. He also argued the evidence was insufficient to sustain his conviction beyond a reasonable doubt and urged the court to consider his youth in evaluating his actions. At the June evidentiary hearing, with all parties and counsel present, McClelland’s counsel requested another continuance. The court then set a “[s]tatus [h]earing” for September.