Filed 8/7/24 P. v. McClure CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

ROBERT DEAN McCLURE,

 Defendant and Appellant.

 G063018

 (Super. Ct. No. 98NF1293)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of 

Orange County, Jonathan S. Fish, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent. 
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Robert Dean McClure appeals the denial of his petition for 

resentencing pursuant to Penal Code section 1172.6. However, his appellate 

attorney filed a brief under the procedures described in People v. Delgadillo

(2022) 14 Cal.5th 216, declaring he was unable to find any issues to raise on 

appellant’s behalf. And having independently reviewed the record, we have 

not detected any arguable issues either. We therefore affirm the trial court’s 

denial order.

PROCEDURAL BACKGROUND

In 1999, appellant was convicted of attempting to murder a man 

over a paternity dispute. (Pen. Code, §§ 664/187, subd. (a).) The jury also 

found appellant acted with premeditation and deliberation and that he 

personally inflicted great bodily injury on the victim by discharging a 

firearm. (Pen. Code, §§ 12022.5, 12022.7, 12022.53, subds. (a) & (d).) The 

trial court sentenced him to life in prison, and we affirmed the judgment on 

appeal. (People v. McClure (Feb. 27, 2001, G026706) [nonpub. opn.].) 

 In 2023, appellant petitioned for resentencing under Penal Code 

section 1172.6. Following a response by the People and a hearing at which 

appellant was represented by appointed counsel, the trial court summarily 

denied his petition on the basis he failed to make a prima facie showing for 

relief. 

 On appeal, appointed counsel filed a brief raising no issues but 

requesting that we independently review the record pursuant to People v. 

Delgadillo, supra, 14 Cal.5th 216. We informed appellant of his right to file a 

supplemental brief, however he declined to do so. Exercising our discretion 

and in the interest of justice, we have examined the entire record for any 

arguable issues. (See id. at p. 230.) But our examination has only confirmed 
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appointed counsel’s conclusion that there are no arguable issues and that 

appellant’s petition was properly denied.

DISCUSSION

Penal Code section 1172.6 allows convicted murderers and 

attempted murderers to seek retroactive resentencing relief based on changes 

in the law that were ushered in by Senate Bill No. 1437 in 2019. (People v. 

Lewis (2021) 11 Cal.5th 952, 957.) However, one of the prerequisites for 

obtaining relief is that the defendant was convicted on a theory of imputed 

liability. (Pen. Code, § 1172.6, subd. (a).) Having reviewed the record of 

appellant’s underlying conviction, it is clear his jury was not instructed on 

any such theory. Rather, he was tried as the actual perpetrator of the

charged offenses. By finding appellant guilty of attempted premeditated 

murder and personally discharging a firearm, the jury convicted him based 

on his own actions and his own malice. Therefore, he is ineligible for 

resentencing as a matter of law. (People v. Curiel (2023) 15 Cal.5th 433.) 

DISPOSITION

The trial court’s order denying appellant’s petition for 

resentencing is affirmed. 

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.