People v. Smith CA2/8

Filed 12/8/25 P. v. Smith CA2/8 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B331802

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA065744) v.

KENNETH EDWARD SMITH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Tony Cho, Judge. Affirmed and remanded with directions. Jonathan E. Demson and Jennifer L. Peabody, 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, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent. _______________________________________

INTRODUCTION Appellant Kenneth Edward Smith pled no contest to one count of attempted murder, and he admitted that he personally used a firearm during the commission of the offense and committed the offense for the benefit of a gang. Smith later filed a resentencing petition under Penal Code section 1172.6.1 The People opposed the petition, arguing the preliminary hearing and plea hearing transcripts established that Smith was the actual shooter and, as a result, was ineligible for resentencing as a matter of law. The trial court denied Smith’s petition at the prima facie stage. We reversed that order in our original opinion, concluding the record did not conclusively establish that Smith was ineligible for resentencing relief and that the trial court erred in relying on the preliminary hearing transcript to deny Smith’s petition. The California Supreme Court granted the People’s petition for review. After deciding People v. Patton (2025) 17 Cal.5th 549 (Patton), the Supreme Court remanded the case to us with directions to vacate our prior decision and to reconsider Smith’s appeal in light of Patton. In Patton, the Supreme Court held that a trial court may properly rely on uncontroverted evidence in a preliminary hearing transcript to refute conclusory allegations in determining whether a petitioner has made a prima facie showing of eligibility for resentencing under section 1172.6. (Patton, at p. 564.) Both parties filed supplemental briefs addressing Patton. Smith does not argue that he made a prima facie showing of eligibility for resentencing under Patton. Instead, he requests only that we remand the case to the superior court with