People v. Smith CA5

Filed 12/18/24 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F087600 Plaintiff and Respondent, (Super. Ct. No. BF136576A) v.

JAMES EDWARD SMITH, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and Ismah Ahmad, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P. J., Smith, J. and Meehan, J.

INTRODUCTION Defendant James Edward Smith appeals from a judgment entered following resentencing pursuant to Penal Code1 section 1172.75. He contends the court prejudicially erred in declining to strike a firearm enhancement entered pursuant to section 12022.5, subdivision (a) by failing to give “great weight” to the mitigating circumstance that the resulting sentence would exceed 20 years. (§ 1385, subd. (c)(2)(C).) We affirm. FACTUAL AND PROCEDURAL HISTORY Defendant shot and killed Daniel Jones in a confrontation over drugs. (People v. Cook (Nov. 24, 2015, F066847, F066872) [nonpub. opn.].)2 A jury convicted defendant of voluntary manslaughter (§ 192, subd. (a); count 1), conspiracy to transport or sell a narcotic controlled substance (§ 182, subd. (a)(1); count 2), being a felon in possession of a firearm (former § 12021, subd. (a)(1); count 3), and being a felon in possession of ammunition (former § 12316, subd. (b)(1); count 4). As to count 1, the jury found a firearm allegation to be true (§ 12022.5, subd. (a)). The court found defendant had a prior “strike” conviction (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), and had suffered five prior prison terms (§ 667.5, former subd. (b)). Defendant was sentenced to an aggregate prison term of 38 years 8 months: the upper term of 22 years on count 1, plus a 10-year term for the firearm allegation; a consecutive term of 2 years 8 months on count 2; and four 1-year terms for four prior prison term

1 Undesignated statutory references are to the Penal Code.