Filed 6/23/26 P. v. McClay CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086402
Plaintiff and Respondent,
v. (Super. Ct. No. SCD304200)
KEONTAE LARAY MCCLAY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Affirmed.
Keontae Laray McClay, in pro. per.; and Matthew Johnson, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MEMORANDUM OPINION
Keontae Laray McClay appeals from a judgment and sentence of six
years in state prison. After conducting an independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v.
California (1967) 386 U.S. 738 (Anders), we affirm the judgment.
I.
Background
At 3:00 p.m. on June 3, 2024, G.R. arrived at her home with her child
just in time to see McClay drive up the residential street in his car. He
“wasn’t driving very well” and “[s]uddenly he parked, but his front tire ended
upon the curb.” McClay then reclined back in the driver seat, closed his eyes,
and did not move for 10 or 15 minutes. G.R.’s son called the police to make
sure McClay was okay.
When Officer Ziya Cuvadar responded, she saw both passenger side
wheels of McClay’s vehicles parked “up on the curb, which is unusual.”
McClay was asleep in the driver’s seat, the keys were in the ignition, and the
engine was running. When Cuvadar woke him up, McClay spoke with
slurred speech. He had glassy and droopy eyes, his movements were very
slow, and he had an odor of an alcoholic beverage. He stated he drank one to
two “Amsterdams.” He failed the field sobriety tests and had a blood alcohol
content of 0.36 according to a preliminary alcohol screening test. McClay
stipulated that a blood sample obtained after his arrest was tested and
showed a blood alcohol content of 0.389 percent, plus or minus 0.011.
Before the People rested their case, McClay stipulated that he had been
convicted of felony driving under the influence (DUI) in 2018. McClay did not
present any affirmative evidence in his defense.
After the jury began deliberations and outside its presence, McClay
admitted the truth of two aggravating factors (Cal. Rules of Court,
rule 4.421(b)(3) [defendant has served a prior term in prison or county jail]
and rule 4.421(b)(2) [defendant’s prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings are numerous or of increasing
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seriousness]) and admitted a 2003 strike prior of assault with a deadly
weapon (Pen. Code,1 §§ 667, subd. (b), 1170.12, 668).
The jury convicted McClay of driving under the influence of alcohol
(Veh. Code, § 23152, subd. (a); count 1) and driving while having a blood
alcohol content at or above 0.08 percent (id., § 23152, subd. (b); count 2). As
to both counts, the jury found true that McClay had a blood alcohol content of
0.15 percent or more at the time of the offenses (Veh. Code, § 23578) and that
he had been convicted of a prior DUI within the preceding 10 years
(Veh. Code, §§ 23626 & 23550.5, subd. (a)).
At sentencing, the trial court denied McClay’s motion to dismiss the
strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court imposed a total prison term of six years, consisting of the upper
term of three years on count 1, doubled for the strike prior. The court
imposed and stayed pursuant to section 654 another six-year term on count 2.
II.
Discussion
McClay’s appointed appellate counsel filed a brief raising no issues and
invited this court to independently review the record under Wende, supra,
25 Cal.3d 436 and Anders, supra, 386 U.S. 738. To assist this court in its
review, counsel identified the following issue: “Was defense counsel
ineffective by failing to request bifurcation of [McClay’s] prior convictions
under Vehicle Code section 23152 subdivision (a)?”
To demonstrate ineffective assistance of counsel, a defendant “must
show that counsel’s performance was deficient, and that the deficiency
prejudiced the defense.” (Wiggins v. Smith (2003) 539 U.S. 510, 521, citing
Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) To establish
1 All further undesignated statutory references are to the Penal Code.
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prejudice, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, at p. 694.) Further, the defendant
“must carry his burden of proving prejudice as a ‘demonstrable reality,’ not
simply speculation as to the effect of the errors or omissions of counsel.”
(People v. Williams (1988) 44 Cal.3d 883, 937.) Assuming without deciding
there was deficient performance, we would conclude the deficiency did not
prejudice McClay given the overwhelming evidence of his guilt on the
conviction offenses.
McClay filed a supplemental brief on his own behalf, asserting seven
sentencing errors. We address each contention, and reject them all. (See
People v. Kelly (2006) 40 Cal.4th 106, 124 [“the Court of Appeal must prepare
a written opinion that describes the contentions personally raised by the
defendant and the reasons those contentions fail”].)
First, McClay claims the trial court imposed an enhancement that is no
longer authorized or requires reconsideration under current law, namely his
prior DUI conviction. Vehicle Code section 23550.5, subdivision (a), provides
a current DUI offense is punishable as a felony if it “occurred within 10
years” of a prior DUI conviction. McClay does not point us to any
ameliorative legislation, nor are we aware of any, that amended any relevant
aspect of Vehicle Code section 23550.5, subdivision (a).
Second, McClay contends the court failed to lawfully select the middle
or lower term in violation of section 1170, subdivision (b). McClay waived his
right to a jury trial and admitted the existence of two aggravating
circumstances. This allowed the court to properly impose the upper term on
count 1. (§ 1170, subd. (b)(2) [“court may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of the crime
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that justify imposition of a term of imprisonment exceeding the middle term
and the facts underlying those circumstances have been stipulated to by the
defendant”].)
Third and related to his second claim, McClay asserts that the court
imposed an unauthorized sentence by failing to apply Assembly Bill No. 124
(2021–2022 Reg. Sess.) which amended section 1170 to make the low-term
sentence presumptively appropriate under specified circumstances.2 But he
did not argue nor request the court find the existence of any circumstance
under section 1170, subdivision (b)(6), to merit the low term sentence. A
party forfeits a claim of sentencing error by failing to raise it in the trial court
below. (People v. Scott (1994) 9 Cal.4th 331, 351 (Scott).)
Fourth, he asserts the court improperly made dual use of a prior felony
DUI conviction as both an enhancement and an aggravating factor. There
was no improper dual use. (See People v. Doyle (2013) 220 Cal.App.4th 1251,
1257–1260 [prior DUI manslaughter could be used both to elevate the current
DUI to a felony under Vehicle Code section 23550.5 and to serve as a strike
under the Three Strikes law].)
2 Section 1170, subdivision (b)(6), provides “unless the court finds that
the aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice, the
court shall order imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: (A) The person has
experienced psychological, physical, or childhood trauma, including, but not
limited to abuse, neglect, exploitation, or sexual violence. (B) The person is a
youth or was a youth . . . . (C) Prior to the instant offense, or at the time of
the commission of the offense, the person is or was a victim of intimate
partner violence or human trafficking.”
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Fifth, he claims the court failed to dismiss or strike enhancements
required by section 1385 as amended by Senate Bill No. 81,3 contending
specifically that the court failed to identify mitigating factors, failed to apply
the presumption favoring dismissal, and failed to make express findings that
dismissal would endanger public safety. McClay has forfeited any argument
under section 1385—which was amended by Senate Bill No. 81 more than
three years earlier—because he made no mention of the statute, and his
counsel did not invite the court to exercise its discretion under the statute to
dismiss or strike any allegation of the accusatory pleading. The failure to
invite the court to dismiss under section 1385 waives or forfeits the right to
raise the issue on appeal. (People v. Coleman (2024) 98 Cal.App.5th 709, 724;
see Scott, supra, 9 Cal.4th at p. 356 [“complaints about the manner in which
the trial court exercises its sentencing discretion and articulates its
supporting reasons cannot be raised for the first time on appeal”].)
Sixth, he claims the court failed to apply Assembly Bill No. 518 (2021–
2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1), which he explains “prohibits the
imposition of multiple enhancements based on the same conditions and
requires the prosecution to elect the enhancement that provides the greatest
3 As amended by Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 721, § 1), effective January 1, 2022, section 1385, subdivision (c), provides:
“Notwithstanding any other law, the court shall dismiss an enhancement if it
is in the furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute. [¶] . . . In exercising its
discretion under this subdivision, the court shall consider and afford great
weight to evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present. Proof of
the presence of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” (§ 1385, subd. (c)(1), (2).)
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punishment.”4 The court stayed the six-year term on count 2 pursuant to
section 654. On this record, there is no other application of section 654.
And seventh, McClay contends cumulative error requires the sentence
be vacated. Since we have found no error, there is none to cumulate. (See
People v. Midell (2025) 113 Cal.App.5th 1060, 1083.)
We have independently reviewed the record as required by Wende and
Anders and considered the contentions McClay raised in his supplemental
brief. Doing so, we find no arguable grounds for reversal or modification of
the judgment. Competent counsel has represented McClay on this appeal.
4 Effective January 1, 2022, Assembly Bill No. 518 amended section 654,
subdivision (a), to permit an act or omission punishable under two or more
provisions of law to “be punished under either of such provisions.” (§ 654,
subd. (a); Stats. 2021, ch. 441, § 1.) Under newly amended section 654, a trial
court is no longer required to punish under the longest possible term of
imprisonment when multiple offenses are based on the same act or omission.
(People v. Mani (2022) 74 Cal.App.5th 343, 379.) Section 654 “now provides
the trial court with discretion to impose and execute the sentence of either
term, which could result in the trial court imposing and executing the shorter
sentence rather than the longer sentence.” (Mani, at p. 379.)
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III.
Disposition
The judgment is affirmed.
DO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
BUCHANAN, J.
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