Filed 10/6/26 P. v. McClary CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089976, F090037
Plaintiff and Respondent,
(Super. Ct. Nos. CRM030796A,
v. CRM028353)
JOHNNIE ANTHONY MCCLARY,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Brian L.
McCabe, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Eric L.
Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Meehan, Acting P. J., DeSantos, J. and Sandhu, J.
Defendant Johnnie Anthony McClary pled no contest in two separate cases. In
one of his cases, defendant pled no contest in 2015 to the offense of robbery and admitted
the enhancement for committing the offense for the benefit of a criminal street gang (Pen.
Code, § 186.22, subd. (b)(1)),1 and the enhancement for personally using a firearm
(§ 12022.53, subd. (b)). The trial court sentenced defendant to an aggregate term of
16 years in prison, which consisted of: three years for robbery, three years for the gang
enhancement, and 10 years for the firearm enhancement.
In 2024, the Department of Corrections and Rehabilitation (CDCR) notified the
trial court of a possible error in the 2015 abstract of judgment. The court conducted a
resentencing hearing, at which it exercised its discretion to strike the firearm
enhancement and impose a lesser included firearm enhancement (§ 12022.5) in its place.
The court resentenced defendant to the same aggregate term, consisting of: three years
for robbery, 10 years for the gang enhancement, and three years for the lesser-included
firearm enhancement.
Defendant appeals following the trial court’s resentencing. On appeal, he
contends (1) the court erred by not conducting a full resentencing, and (2) his trial
counsel rendered ineffective assistance by stipulating to the same aggregate term length
of his sentence. We order the abstract of judgment corrected to reflect the court’s
pronouncements. As modified, we affirm.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
PROCEDURAL AND FACTUAL SUMMARY2
In July 2013, in Merced County Superior Court case No. CRM028353, the Merced
County District Attorney filed a criminal complaint charging defendant with corporal
injury to a spouse or roommate (§ 273.5, subd. (a); count 1), criminal threats (§ 422;
count 2), disobeying a court order (§ 273.6, subd. (a); count 3), and resisting an officer
(§ 148, subd. (a)(1); count 4). Defendant entered a plea of no contest to count 1, and the
trial court placed defendant on three years of felony probation. The remaining charges
were dismissed.
In June 2014, in Merced County Superior Court case No. CRM030796A, the
Merced County District Attorney filed an information charging defendant with robbery
(§ 211; count 1), and street terrorism (§ 186.22, subd. (a); count 2). As to count 1, it was
alleged that defendant committed the offense for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)), personally used a firearm (§ 12022.53, subd. (b)), and was armed
with a firearm (§ 12022, subd. (a)(1)).
In 2015, in case No. CRM030796A, defendant entered a plea of no contest to
count 1 and admitted the gang enhancement and the firearm enhancement. Defendant
was sentenced to 16 years in prison, consisting of: three years on count 1, plus
three years for the gang enhancement and 10 years for the firearm enhancement. The
trial court revoked probation in case No. CRM028353 and sentenced defendant to the
middle term of three years, ran concurrent with his sentence in case No. CRM030796A.
In 2017, while incarcerated in Lassen County, defendant was convicted of
possession of a controlled substance in prison (§ 4573.6) in Lassen County Superior
Court case No. CH036291. In 2019, defendant was convicted of possession of a weapon
by a prisoner (§ 4502, subd. (a)) in Lassen County Superior Court case No. CH038140.
2 We omit a more detailed description of the facts of this case as they are not
relevant to the issues raised on appeal.
3.
The Lassen County Superior Court sentenced defendant to an aggregate term of
five years for his two in-prison offenses, and his sentence was run consecutive to his
sentence in case No. CRM030796A.
In November 2021, defendant filed a petition for writ of habeas corpus in the
Merced County Superior Court requesting the trial court to conduct a Franklin hearing
(People v. Franklin (2016) 63 Cal.4th 261). The court denied defendant’s petition. In
2022, we issued a peremptory writ of mandate directing the court to conduct a Franklin
hearing. (McClary v. Superior Court (July 21, 2022, F083846) [nonpub. opn.].)
In February 2024, CDCR informed the trial court of a possible error in the abstract
of judgment. The court held a resentencing hearing on June 9, 2025. For defendant’s
sentence in case No. CRM030796A, the court resentenced defendant to three years for
robbery, plus a consecutive 10-year enhancement for participation in a criminal street
gang; and a three-year enhancement for the firearm enhancement (§ 12022.5).3 The court
reimposed the three-year concurrent term for corporal injury in case No. CRM028353.
Defendant filed a notice of appeal in both cases. We consolidated defendant’s
appeals at the People’s request.
DISCUSSION
I. Section 1172.1 Resentencing
Defendant contends the trial court erred by failing to engage in a full resentencing
under section 1172.1. The People contend defendant received a full resentencing.
“Under the general common law rule, a trial court is deprived of jurisdiction to
resentence a criminal defendant once execution of the sentence has commenced.”
(People v. Karaman (1992) 4 Cal.4th 335, 344.) Section 1172.1 (former § 1170,
subd. (d)) is a statutory exception to this general rule, which provides “authority for a
3 The trial court exercised its discretion to strike the section 12022.53,
subdivision (c) enhancement, and impose an enhancement under section 12022.5 as a
lesser included enhancement.
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trial court to recall the sentences of incarcerated defendants and resentence them under
certain circumstances.” (People v. Hodge (2024) 107 Cal.App.5th 985, 992.)
Pursuant to an amendment effective January 1, 2024, section 1172.1 provides a
trial court the authority to “recall a sentence and resentence a defendant on its own
motion ‘at any time if the applicable sentencing laws at the time of original sentencing
are subsequently changed by new statutory authority or case law.’ ” (People v. Hodge,
supra, 107 Cal.App.5th at p. 992, citing § 1172.1, subd. (a)(1); see Assem. Bill No. 600
(2023–2024 Reg. Sess.).) If the court recalls the defendant’s previously-ordered sentence
and commitment, the court must then “resentence the defendant in the same manner as if
they had not previously been sentenced, whether or not the defendant is still in custody,
and provided the new sentence, if any, is no greater than the initial sentence.” (§ 1172.1,
subd. (a)(1).)
“The court, in recalling and resentencing pursuant to this subdivision, shall apply
the sentencing rules of the Judicial Council and apply any changes in law that reduce
sentences or provide for judicial discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing.” (§ 1172.1, subd. (a)(2).) Subdivision (a)(5) of that
section provides, in relevant part: “In recalling and resentencing pursuant to this
provision, the court shall consider postconviction factors, including, but not limited to,
the disciplinary record and record of rehabilitation of the defendant while incarcerated,
evidence that reflects whether age, time served, and diminished physical condition, if
any, have reduced the defendant’s risk for future violence, and evidence that reflects that
circumstances have changed since the original sentencing so that continued incarceration
is no longer in the interest of justice.” (§ 1172.1, subd. (a)(5).)
The People concede that the trial court had the authority to recall defendant’s
sentence “at any time if the applicable sentencing laws at the time of original sentencing
are subsequently changed by new statutory authority or case law,” and that the court
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exercised that authority here. (Citing § 1172.1, subd. (a).) Defendant agrees with this
concession, as do we.
Defendant argues the trial court failed to engage in a full resentencing. Not so. At
the hearing, the court first revisited defendant’s sentence in case No. CRM030796A. The
court exercised its authority to reduce defendant’s firearm enhancement from a violation
of section 12022.53, subdivision (b), to section 12022.5. The court imposed a sentence
on all counts in his two cases. The court resentenced defendant to an aggregate term of
16 years, consisting of three years for corporal injury, plus 10 years for the gang
enhancement, and three years for the firearm enhancement. The court then resentenced
defendant in case No. CRM028353 to the midterm of three years, concurrent to
defendant’s sentence in case No. CRM030796A. Although the court resentenced
defendant to the same aggregate length as his original sentence from 2015, the court was
entitled to do so. (§ 1172.1, subd. (a)(1) [requiring that the “new sentence, if any, is no
greater than the initial sentence”].)
Defendant asserts the trial court failed to apply the changes to the law since his
original sentencing. He notes there was no indication in the record that the court applied
the changes to the law, and specifically, section 1385. This contention is unpersuasive.
Defendant fails to satisfy his burden to affirmatively show error in the court’s judgment.
(See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be affirmatively
shown.’ ”]; see also People v. Carmony (2004) 33 Cal.4th 367, 376–377 [“ ‘the trial court
is presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
review’ ” absent a showing the court abused its discretion].) Nothing in the record
affirmatively demonstrates that the court failed to apply the applicable sentencing laws at
defendant’s resentencing. (People v. Ramirez (2021) 10 Cal.5th 983, 1042 [“Absent
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evidence to the contrary, we presume that the trial court knew the law and followed it.”].)
Although the court made no reference to section 1385, we cannot conclude on a silent
record that the court failed to apply the changes to the law. (See People v. Brugman
(2021) 62 Cal.App.5th 608, 637 [“ ‘The trial court is not required to state reasons for
declining to exercise its discretion under section 1385’ [citations], and ‘is presumed to
have considered all of the relevant factors in the absence of an affirmative record to the
contrary.’ ”]; see also People v. Coleman (2024) 98 Cal.App.5th 709, 725 [the
defendant’s “citation to a silent record is insufficient to meet his burden to demonstrate
an abuse of discretion”].)
II. Ineffective Assistance of Counsel
Defendant contends his trial counsel rendered ineffective assistance of counsel by
stipulating to the 16-year aggregate sentence during resentencing.
To demonstrate ineffective assistance of counsel, a defendant must show counsel’s
performance fell below an objective standard of reasonableness under the prevailing
professional norms, and that there is a reasonable probability that the outcome of the
proceeding would have been different absent counsel’s shortcomings. (Strickland v.
Washington (1984) 466 U.S. 668, 687.)
“On direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013)
57 Cal.4th 986, 1009.) “All other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (Ibid.)
Defendant argues the record affirmatively discloses trial counsel rendered
ineffective assistance by failing to request a full resentencing. This claim is
unpersuasive. As we stated above, defendant received a full resentencing. To the extent
defendant challenges his trial counsel’s failure to request a reduction in his aggregate
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sentence, we cannot conclude that this was ineffective assistance. Trial counsel may
have concluded that the trial court was unwilling to reduce defendant’s sentence given his
instances of misconduct while serving his prison sentence. (See § 1172.1, subd. (a)(5)
[trial court shall consider disciplinary record of the defendant while incarcerated in
resentencing]; see also People v. Lucas (1995) 12 Cal.4th 415, 437 [“there is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance’ ”]; People v. Lewis (1990) 50 Cal.3d 262, 289 [“Counsel may not be criticized
for failing to bring a motion that would have been futile.”].)
Moreover, defendant fails to show prejudice. He asserts there was a reasonable
probability of a better outcome because the potential benefit “was significant” and there
was “no downside” to such a request. This speculation is insufficient to show prejudice.
(People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [“Prejudice requires ‘a reasonable
probability that a more favorable outcome would have resulted …, i.e., a probability
sufficient to undermine confidence in the outcome.’ ”]; People v. Ramirez (2023)
98 Cal.App.5th 175, 212 [“ ‘A defendant must prove prejudice that is a “ ‘demonstrable
reality,’ ” not simply speculation.’ ”].) In any event, even if trial counsel had requested a
reduction in defendant’s aggregate sentence, it is not reasonably probable that the trial
court would have done so considering defendant’s instances of misconduct while in
prison. (§ 1172.1, subd. (a)(5).) Accordingly, we reject his claim of ineffective
assistance of counsel.
III. Abstract of Judgment
The People note the abstract of judgment does not accurately reflect defendant’s
sentence. Defendant agrees that the abstract of judgment should be corrected.
“[I]f the minutes or abstract of judgment fails to reflect the judgment pronounced
by the court, the error is clerical, and the record can be corrected at any time to make it
reflect the true facts.” (People v. Humphrey (2020) 44 Cal.App.5th 371, 379.) “Courts
may correct clerical errors at any time, and appellate courts (including this one) that have
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properly assumed jurisdiction of cases have ordered correction of abstracts of judgment
that did not accurately reflect the oral judgments of sentencing courts.” (People v.
Mitchell (2001) 26 Cal.4th 181, 185.)
Here, the trial court resentenced defendant to an aggregate term of 16 years,
consisting of: three years for robbery, 10 years for the gang enhancement, and
three years for his firearm enhancement. The abstract of judgment, however, lists a term
of three years for his gang enhancement, and 10 years for his firearm enhancement.
Accordingly, we agree with the parties that the abstract of judgment must be modified to
correctly reflect the court’s pronouncements.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment consistent
with the court’s oral pronouncement and send a copy of the amended abstract of
judgment to all appropriate authorities. The judgment is otherwise affirmed.
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