People v. McClelland CA2/3 ( 2021 )

Filed 10/26/21 P. v. McClelland CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B312254
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA086676
v.
SEAN MCCLELLAND,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hayden Zacky, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
In 2018, defendant Sean McClelland pled no contest to
kidnapping, threatening, and attempting to murder his parents.
As part of the plea agreement, he agreed to waive all presentence
custody credits. In 2021, defendant filed a motion asserting he
was entitled to presentence custody credit for time he had spent
confined to a state hospital. The trial court denied the motion,
and defendant appeals. We affirm.
BACKGROUND1
By felony complaint filed July 6, 2016, defendant was
charged with two counts of kidnapping (Pen. Code, 2 § 207,
subd. (a); counts 1–2); one count of attempted murder (§ 664/187,
subd. (a); count 3); two counts of criminal threats (§ 422,
subd. (a); counts 4–5); and one count of assault with a deadly
weapon (§ 245, subd. (a)(1); count 6). As to counts 1–5, the
information alleged defendant personally used a machete in the
commission of the offense (§ 12022, subd. (b)(1)). The information
also alleged defendant had previously been convicted of a strike
offense (§§ 667, subd. (d), 1170.12, subd. (b)).
On January 24, 2018, pursuant to a negotiated plea
agreement, defendant pled no contest to counts 2 and 3, admitted
the deadly-weapon allegation for count 2, and admitted the strike
prior. During the plea colloquy, the following exchange occurred:
1 Because the facts underlying defendant’s convictions are irrelevant to
this appeal, we do not address them.
2 All undesignated statutory references are to the Penal Code.
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Court: This deal also, sir, contemplated that you
waive all custody back time. What that
means is I’m going to sentence you here
today to 13 years, 8 months. And once you
go into those—behind that door and start
serving your sentence, you’ll start accruing
custody today. But as of the time I
sentence you, you will have zero custody
credits against the 13 years, 8 months. Do
you understand and agree to that, sir?
Defendant: Yes.
Court: And do you waive all back time custody
credits to this date?
Defendant: Yes.
The court sentenced defendant to the agreed-upon
aggregate term of 13 years, 8 months in state prison. The court
selected count 3 as the base term and imposed 10 years—the low
term of five years, doubled for the prior strike. The court imposed
3 years, 8 months for count 2—one-third the mid-term of five
years, doubled for the prior strike, plus one-third of the one-year
enhancement. The court did not award any pretrial custody
credit. Finally, the court dismissed the remaining counts and
allegations.
On April 9, 2021, defendant filed a motion for presentence
custody and conduct credits under sections 2900.5 and 4019. The
court denied the motion by written order.
Defendant filed a timely notice of appeal, and we appointed
counsel to represent him.
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On August 24, 2021, appointed counsel filed a brief in
which he raised no issues and asked us to follow the procedures
set forth in People v. Serrano (2012) 211 Cal.App.4th 496. We
notified defendant that his attorney had filed a brief that raised
no issues and that he could submit by brief or letter any grounds
for an appeal, or contentions or arguments he wished this court
to consider. To date, however, we have not received a response.
Although defendant did not file a supplemental letter brief, we
follow the procedures set forth in People v. Wende (1979) 25
Cal.3d 436 (Wende), rather than those in Serrano.
DISCUSSION
We have examined the entire record, and are satisfied
appellate counsel has fully complied with his responsibilities, and
no arguable issues exist in the appeal before us. (Smith v.
Robbins (2000) 528 U.S. 259, 278–284; Wende, supra, 25 Cal.3d
at p. 443.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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