Filed 10/26/21 P. v. McClelland CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

SEAN MCCLELLAND,

Defendant and Appellant.

B312254

Los Angeles County

Super. Ct. No. PA086676

APPEAL from an order of the Superior Court of Los

Angeles County, Hayden Zacky, Judge. Affirmed.

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.
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INTRODUCTION

In 2018, defendant Sean McClelland pled no contest to 

kidnapping, threatening, and attempting to murder his parents.

As part of the plea agreement, he agreed to waive all presentence 

custody credits. In 2021, defendant filed a motion asserting he 

was entitled to presentence custody credit for time he had spent 

confined to a state hospital. The trial court denied the motion, 

and defendant appeals. We affirm.

BACKGROUND1

By felony complaint filed July 6, 2016, defendant was 

charged with two counts of kidnapping (Pen. Code,2 § 207, 

subd. (a); counts 1–2); one count of attempted murder (§ 664/187, 

subd. (a); count 3); two counts of criminal threats (§ 422, 

subd. (a); counts 4–5); and one count of assault with a deadly 

weapon (§ 245, subd. (a)(1); count 6). As to counts 1–5, the 

information alleged defendant personally used a machete in the 

commission of the offense (§ 12022, subd. (b)(1)). The information 

also alleged defendant had previously been convicted of a strike 

offense (§§ 667, subd. (d), 1170.12, subd. (b)).

On January 24, 2018, pursuant to a negotiated plea 

agreement, defendant pled no contest to counts 2 and 3, admitted 

the deadly-weapon allegation for count 2, and admitted the strike 

prior. During the plea colloquy, the following exchange occurred:

1 Because the facts underlying defendant’s convictions are irrelevant to 

this appeal, we do not address them.

2 All undesignated statutory references are to the Penal Code.
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Court: This deal also, sir, contemplated that you 

waive all custody back time. What that 

means is I’m going to sentence you here 

today to 13 years, 8 months. And once you 

go into those—behind that door and start 

serving your sentence, you’ll start accruing 

custody today. But as of the time I 

sentence you, you will have zero custody 

credits against the 13 years, 8 months. Do 

you understand and agree to that, sir?

Defendant: Yes.

Court: And do you waive all back time custody 

credits to this date?

Defendant: Yes. 

The court sentenced defendant to the agreed-upon

aggregate term of 13 years, 8 months in state prison. The court

selected count 3 as the base term and imposed 10 years—the low 

term of five years, doubled for the prior strike. The court imposed 

3 years, 8 months for count 2—one-third the mid-term of five 

years, doubled for the prior strike, plus one-third of the one-year 

enhancement. The court did not award any pretrial custody 

credit. Finally, the court dismissed the remaining counts and 

allegations.

On April 9, 2021, defendant filed a motion for presentence 

custody and conduct credits under sections 2900.5 and 4019. The 

court denied the motion by written order.

Defendant filed a timely notice of appeal, and we appointed 

counsel to represent him.
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On August 24, 2021, appointed counsel filed a brief in 

which he raised no issues and asked us to follow the procedures 

set forth in People v. Serrano (2012) 211 Cal.App.4th 496. We 

notified defendant that his attorney had filed a brief that raised 

no issues and that he could submit by brief or letter any grounds 

for an appeal, or contentions or arguments he wished this court 

to consider. To date, however, we have not received a response. 

Although defendant did not file a supplemental letter brief, we 

follow the procedures set forth in People v. Wende (1979) 25 

Cal.3d 436 (Wende), rather than those in Serrano.

DISCUSSION

We have examined the entire record, and are satisfied 

appellate counsel has fully complied with his responsibilities, and 

no arguable issues exist in the appeal before us. (Smith v. 

Robbins (2000) 528 U.S. 259, 278–284; Wende, supra, 25 Cal.3d 

at p. 443.)
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DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.