People v. Horsley CA3

Filed 4/10/25 P. v. Horsley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C100429

Plaintiff and Respondent, (Super. Ct. No. 07F09616)

v.

KENNETH GABRIEL HORSLEY,

Defendant and Appellant.

Defendant Kenneth Gabriel Horsley was convicted in 2008 on 10 counts and sentenced to 34 years plus 65 years to life. In 2024, at a resentencing hearing under Penal Code1 section 1172.75, the trial court denied defendant’s Romero2 motion and resentenced him to 39 years plus 33 years to life. Defendant appeals, contending the trial

1 Undesignated section references are to the Penal Code. 2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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court abused its discretion by denying his Romero motion without fully considering mitigating circumstances. The People contend the matter must be remanded due to a sentencing error under section 1170.1, subdivision (a). We agree with the People and reverse defendant’s sentence and remand for resentencing. Because defendant will be entitled to raise a Romero motion on remand, we will not address his appellate claim. FACTUAL AND PROCEDURAL BACKGROUND On October 6, 2007, defendant was arrested after leading law enforcement officers on a high-speed chase. At trial, the jury found defendant guilty of assault with a firearm (count two), discharge of a firearm at an occupied motor vehicle (count three), kidnapping (count four), evading a peace officer (count five), possession of methamphetamine while armed with a loaded and operable firearm (count six), unlawfully transporting methamphetamine (count seven), possession of methamphetamine (count eight), possession of a firearm by a convicted felon (count nine), unlawfully carrying a firearm (count ten), and failure to stop at the scene of an accident (count eleven). The jury also found true defendant both personally used a firearm and intentionally discharged a firearm in association with count two. The jury also found true at a bifurcated trial defendant had three prior serious felony convictions, which also qualified as strike offenses, and had served two prior prison terms. On March 7, 2008, the trial court sentenced defendant to 34 years plus 65 years to life in prison for count two and count five, which included multiple prior prison term enhancements. The court stayed sentences for five of the convictions under section 654 and imposed concurrent terms for counts four, six, and eleven. In 2009, this court reversed count eight and granted defendant an additional two days of credits. (People v. Horsley (Apr. 10, 2009, C058439) [nonpub. opn.].) In 2023, the Department of Corrections and Rehabilitation identified defendant as eligible for resentencing pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3), codified as section 1171.1, later renumbered to section 1172.75.