People v. Kelly CA2/8

Filed 6/2/25 P. v. Kelly CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B337269

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA055388-02) v.

THEODORE PETER KELLY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Judith Levey Meyer, Judge. Appeal dismissed.

Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

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Theodore Peter Kelly appeals the denial of his request for recall and resentencing under Penal Code1 section 1172.1. The question presented is whether the denial of Kelly’s request for recall and resentencing is an appealable order. We dismiss the appeal because we find the denial of this request does not affect Kelly’s substantial rights under section 1237, subdivision (b). It is therefore not an appealable order. FACTUAL AND PROCEDURAL BACKGROUND In 2004, a jury convicted Kelly of three counts of second- degree robbery and six counts of false imprisonment in violation of sections 211 and 236. The jury found true that Kelly personally used a firearm in committing the offenses. The trial court sentenced Kelly to a total of 35 years eight months in prison. For context only we recite the facts of the offenses, which involved the robbery of a pawn shop on January 4, 2003. After casing the pawn shop and leaving, Kelly and three other men returned to the shop, rounded up, handcuffed and beat the shopkeepers and a customer, and robbed them of their belongings. They also locked a female customer and her four children into a back room of the shop during the robbery. The men left with bags of jewelry along with personal items stolen from the shopkeepers and a customer in the shop. At least two of the men had firearms, including Kelly. (People v. Kelly (Jan. 24, 2008, B182347) [nonpub. opn.].) In 2024, Kelly filed a form petition requesting recall and resentencing pursuant to section 1172.1. In that request, Kelly stated he had served 21 years of his sentence to date. He