Filed 7/30/26 P. v. McGhee CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B350648
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. XSCTA031198)
v.
HAROLD JAMAAL MCGHEE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Carol J. Najera, Judge. Affirmed.
A. William Bartz, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Harold Jamaal McGhee appeals from a trial court order
denying his petition for recall and resentencing pursuant to
Penal Code section 1170, subdivision (d)(1) (section 1170(d)(1)).1
His appellate counsel filed a brief under People v. Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo). McGhee filed a supplemental
brief arguing the trial court erred in denying his petition. We
consider McGhee’s contentions and affirm the trial court order.
FACTUAL AND PROCEDURAL BACKGROUND
McGhee was convicted of first degree murder with firearm
use for a crime he committed in 1994, when he was 17 years old.
He was sentenced to 29 years to life. In 2024, McGhee filed a
petition under section 1170(d)(1), seeking recall of his sentence
and resentencing. The People opposed the petition, arguing
McGhee was ineligible for relief because he was not sentenced to
the functional equivalent of life without the possibility of parole.
Among other things, the People pointed out that McGhee had
received several parole hearings. The trial court denied the
petition.
McGhee timely appealed. His court-appointed appellate
counsel filed an opening brief that raised no issues pursuant to
Delgadillo, supra, 14 Cal.5th 216. We directed appellate counsel
to send McGhee the record and a copy of the opening brief. We
additionally advised that within 30 days of the date of the notice,
McGhee could submit a supplemental brief or letter stating any
grounds for an appeal, contentions, or arguments he wished this
court to consider. McGhee timely submitted a supplemental
brief.
1 All further statutory references are to the Penal Code.
2
DISCUSSION
In his supplemental brief, McGhee argues the trial court
order denying his section 1170(d)(1) petition violated his state
and federal constitutional rights to equal protection. In related
arguments, he appears to assert that his counsel was ineffective
for failing to raise the equal protection argument he has
identified.2 We find no trial court error and no basis for an
ineffective assistance of counsel claim.
Under section 1170(d)(1), “When a defendant who was
under 18 years of age at the time of the commission of the offense
for which the defendant was sentenced to imprisonment for life
without the possibility of parole has been incarcerated for at least
15 years, the defendant may submit to the sentencing court a
petition for recall and resentencing.”
McGhee was not sentenced to life without the possibility of
parole. However, in the trial court, and presumably again on
appeal, he has argued he is nonetheless eligible to apply for relief
pursuant to section 1170(d)(1) because his sentence of 29 years to
life is the functional equivalent of life without parole. McGhee
relies on People v. Heard (2022) 83 Cal.App.5th 608 (Heard), to
support his argument.
In Heard, the court concluded that an aggregate sentence of
103 years to life imposed on a juvenile offender was the
functional equivalent of life without parole. (Heard, supra, 83
Cal.App.5th at p. 614.) The Heard court held the defendant was
thus similarly situated to juvenile offenders sentenced to life
without parole who are eligible for relief under section 1170(d)(1).
2 It is unclear if McGhee is referring to his trial counsel or
appellate counsel, although he requests that this court appoint
new counsel to brief the equal protection issue.
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(Heard, at pp. 628–631.) The court concluded that denying the
defendant the opportunity to petition for relief under
section 1170(d)(1) violated his equal protection rights. (Heard, at
pp. 633–634.)
The Courts of Appeal have since issued conflicting decisions
about whether denying eligibility for section 1170(d)(1) relief to a
juvenile offender sentenced to a term that is lengthy but does not
exceed the offender’s natural life expectancy violates equal
protection guarantees, and whether a juvenile offender serving a
lengthy sentence who is eligible for youth offender parole is
serving a sentence that is the functional equivalent of life without
parole within the meaning of section 1170(d)(1). The California
Supreme Court will have the final say on these issues. (See, e.g.,
People v. Thompson (2025) 112 Cal.App.5th 1058, rev. granted
Sept. 24, 2025, S292540; People v. Munoz (2025) 110 Cal.App.5th
499, rev. granted June 25, 2025, S290828; People v. Isayev (2025)
113 Cal.App.5th 1117, rev. granted Nov. 12, 2025, S292860;
People v. Ortega (2025) 111 Cal.App.5th 1252, rev. granted
Sept. 17, 2025, S292070; see also People v. Cabrera (2025) 111
Cal.App.5th 650.)
However, no court has concluded that a juvenile offender
serving a sentence of 29 years to life, or any sentence of similar
length, is eligible for section 1170(d)(1) relief, under any theory.
(See People v. Olmos (2025) 109 Cal.App.5th 580, 583 [33 years to
life is not the functional equivalent of life without parole for
§ 1170(d)(1) purposes].) Further, while in People v. Contreras
(2018) 4 Cal.5th 349 (Contreras), the California Supreme Court
concluded that a sentence of 50 years to life is the functional
equivalent of life without parole when imposed on a juvenile non-
homicide offender for Eighth Amendment purposes, no California
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court has reached that conclusion as to a sentence similar to
McGhee’s, which is under 30 years to life. (Olmos, at p. 583 [33-
years-to-life sentence not the functional equivalent of life without
parole]; People v. Perez (2013) 214 Cal.App.4th 49, 51, 58 [30-
years-to-life sentence and eligibility for parole at age 47 not the
functional equivalent of life without parole].)
Indeed, the reasoning of Contreras, and the United States
Supreme Court authority on which it relies, does not apply to a
defendant whose sentence affords him the opportunity for release
at 46 years old, at the latest. The Contreras court reasoned that,
to be consistent with Graham v. Florida (2010) 560 U.S. 48, a
sentence imposed on a juvenile non-homicide offender must
provide a “sufficient period to achieve reintegration as a
productive and respected member of the citizenry”; give an
incentive for the juvenile offender to become a responsible
individual; and provide a realistic hope of release. (Contreras,
supra, 4 Cal.5th at p. 368; see id. at pp. 367–369, 373.) Parole
eligibility after 29 years provides all these things and, indeed,
McGhee has already been considered for parole.
Accordingly, the trial court did not err in rejecting
McGhee’s petition for recall and resentencing under
section 1170(d), and his counsel was not ineffective for declining
to argue otherwise.
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DISPOSITION
The trial court order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, Acting P. J.
We concur:
HANASONO, J.
ASHWORTH, J.*
* Retired Judge of the El Dorado County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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