People v. Kelley CA4/3

Filed 6/9/25 P. v. Kelley CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G064660

v. (Super. Ct. No. FSB1301928)

LUCKY STEVEN KELLEY, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of San Bernardino County, Michael A. Smith, Judge (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed in part, reversed in part, and remanded with directions. Cindi B. Mishkin and Ariana D’Agostino, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Namita Patel, Deputy Attorneys General, for Plaintiff and Respondent. * * * In 2014, Lucky Steven Kelley pleaded guilty to a felony charge of robbery (Pen. Code, § 211)1 and admitted a prior strike (§ 667, subd. (b)–(i)), a prison prior (§ 667.5, subd. (b)), and a serious felony prior (§ 667, subd. (a)(1)). The serious felony prior was based on a juvenile adjudication. After Kelley failed to appear for sentencing, the trial court sentenced him to 16 years in state prison. In 2023, Kelley applied for resentencing pursuant to section 1172.75. The trial court dismissed the prison prior but declined Kelley’s request to dismiss the serious felony prior or prior strike. On appeal, Kelley contends: (1) the court erred in failing to dismiss his serious felony prior because it was impermissibly based on a juvenile adjudication; (2) the court erred in declining to dismiss his prior strike under section 1172.75; and (3) the court failed to recalculate his custody credits at resentencing. The Attorney General concedes it was improper to base the enhancement for the serious felony prior on Kelley’s juvenile adjudication and his custody credits must be recalculated. We agree and reverse and remand to the trial court with directions to strike Kelley’s serious felony prior