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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
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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
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by counsel; (2) as a case arising from an order denying postconviction relief, defendant
was not entitled to counsel or to an independent review of the record; and (3) in
accordance with the procedures set forth in Delgadillo, defendant had 30 days in which to
file a supplemental brief or letter raising any argument he wanted this court to consider.
In addition, we notified defendant if we did not receive a letter or brief within that 30-day
period, the court may dismiss the appeal as abandoned.
II. DISCUSSION
When an attorney files a brief under Wende after a denial of a section 1172.6
petition, Delgadillo requires, in part, consideration of any arguments raised by a
defendant in supplemental briefing. (Delgadillo, supra, 14 Cal.5th at pp. 231-232.)
Defendant, on transfer, filed a supplemental brief making the same argument that he did
in his original supplemental brief. He challenges the trial court’s denial of his section
1172.6 petition, arguing he “was convicted by jury of second degree murder under a
theory of ‘natural and probable consequences.’ ” Defendant also contends the trial court
improperly resolved factual disputes at the prima facie stage.
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, was enacted “to amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act with the intent to kill, or
was not a major participant in the underlying felony who acted with reckless indifference
to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill No. 1437 also added former section 1170.95 (now section 1172.6),
which applies these changes retroactively by permitting qualifying individuals who were
“convicted of felony murder or murder under a natural and probable consequences
doctrine . . . [to] file a petition with the court that sentenced the petitioner to have the
petitioner’s murder . . . conviction vacated and to be resentenced on any remaining
counts.” (§ 1172.6, subd. (a).) Once a complying petition is filed, the court appoints
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counsel if requested, the parties submit briefs, and the trial court makes a prima facie
determination of eligibility. (People v. Lewis (2021) 11 Cal.5th 952, 966.) The prima
facie inquiry is “limited” and courts must “ ‘ “take[] petitioner’s factual allegations as
true.” ’ ” (Id. at p. 971.) “ ‘However, if the record [of conviction], including the court’s
own documents, “contain[s] facts refuting the allegations made in the petition,” then “the
court is justified in making a credibility determination adverse to the petitioner.” ’ ”
(Ibid.)
The record of conviction here establishes defendant’s position is plainly false.
The jury was not instructed on the natural and probable consequences doctrine for second
degree murder as an accomplice. Instead, under CALCRIM No. 520, the jury was
required to find defendant was the direct perpetrator who “committed an act that caused
the death of another person.” The jury also found he acted with implied malice, in that he
“intentionally committed the act” and “knew his act was dangerous to human life,” yet
“deliberately acted with conscious disregard for human life.” Thus, defendant’s second
degree murder conviction is still valid after Senate Bill No. 1437, and he is ineligible as a
matter of law for relief under section 1172.6. The trial court properly denied defendant’s
petition.
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III. DISPOSITION
The order denying defendant’s petition for resentencing pursuant to section 1172.6
is affirmed.
/S/
RENNER, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
KRAUSE, J.
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